Federal Court of Australia

Reyes v United States of America [2020] FCAFC 149

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant has been the subject of extradition proceedings since her arrest in April 2018 on a warrant issued under s 12 of the Extradition Act 1988 (Cth) (Act). The warrant was issued following a provisional arrest request from the first respondent, the United States of America. She has been in custody, bail refused, since her arrest.

2    In April 2019, the appellant was found to be eligible for surrender, following a five-day contested hearing before a South Australian magistrate. On 24 February 2020, the second respondent, the Attorney-General of the Commonwealth of Australia:

(1)    made a determination that the appellant be surrendered in relation to the extradition offences under s 22 of the Act; and

(2)    issued a warrant for her surrender to the United States under s 23 of the Act.

By 24 April 2020, two months after the issue of the surrender warrant, that warrant had not been executed, and the appellant therefore remained in custody in Australia.

3    Section 26(5) of the Act, subject to s 26(6), relevantly compelled the making of an order for the appellant’s release once:

(1)    a surrender warrant had been issued;

(2)    she had been in custody in Australia under that warrant more than two months after the day on which that warrant was first liable to be executed;

(3)    she had applied to this Court for a release order; and

(4)    she gave reasonable notice of her intention to make the application to the Attorney-General.

4    Section 26(6) provides:

Where the Federal Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 2 months or since the person last made an application under subsection (5), as the case may be:

(a)    because to do so would have been dangerous to the life or prejudicial to the health of the person; or

(b)    for any other reasonable cause;

the Federal Court shall not order that the person be released from custody.

5    On 22 April 2020, the appellant gave notice to the Attorney-General that, if she was not surrendered to the United States by the next day, she would make an application to this Court for an order that she be released, under s 26(5) of the Act.

6    The appellant’s application under s 26(5) was filed on 29 April 2020, amended on 12 May 2020, and also heard on 12 May 2020. At the hearing before the primary judge, the respondents accepted that reasonable notice of the application had been given, and that the other prerequisites for the making of a release order set out in s 26(5)(a)-(c) of the Act had been met. However, they opposed the making of an order for the appellant’s release under s 26(6)(b) of the Act.

7    The respondents asserted the reasonable cause for the appellant not having been conveyed out of Australia within the required period of two months arose from the circumstances created by the COVID-19 (COronaVIrus Disease 2019) pandemic, including the restrictions on movement between Australia and the United States and associated health risks for the extradition escort. The appellant contended, and continues to contend, that there was insufficient evidence to support that conclusion.

8    The primary judge dismissed the application for release from custody upon the basis that his Honour considered 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”.

Notice of appeal, appeal disposition and notice of contention

9    The appellant appeals from the dismissal of her application upon the following two grounds:

The learned trial judge erred by reversing the onus of proof in respect of satisfaction that the failure to convey the appellant out of Australia prior to 24 April 2020 was for a reasonable cause.

The learned trial judge erred by finding that the failure to convey the appellant out of Australia prior to 24 April 2020 was for a reasonable cause.

10    The global submission in support of both grounds of appeal is an assertion that the primary judge extrapolated the evidence beyond the drawing of available inferences, and engaged in speculation as to the cause of the failure to convey the appellant out of Australia within the two-month time limit. The appellant contends that by taking this approach to the evidence, his Honour:

(1)    reversed the onus of proof;

(2)    failed to identify the “true cause” of the failure to convey the appellant out of Australia within the required time (if any such cause existed); and

(3)    in the alternative, failed to conduct a proper assessment of the reasonableness of the cause that was identified.

The breadth of the appellant’s submissions necessitates considering his Honour’s reasons in some detail, leading to the conclusion that the asserted errors have not been established.

11    The respondents filed a notice of contention, seeking to have the primary judge’s decision upheld on other grounds if the appeal was otherwise to succeed. As we have concluded that the appeal must be dismissed, consideration of the notice of contention does not arise.

Amendment of the surrender warrant

12    The surrender warrant as originally issued was addressed to the persons holding the appellant in custody in Australia, to all police officers within the meaning of the Act, and to “officers of the United States Marshal Service” (USMS), referred to in the warrant as “the escort”. The warrant authorised the USMS to transport the appellant in custody out of Australia to the United States for the purpose of surrendering her to a person appointed by the United States to receive her.

13    On 23 March 2020, the surrender warrant was amended to replace the USMS with the United States Federal Bureau of Investigation (FBI) as the escort. It was common ground before the primary judge, and on appeal, that this did not change the two-month period for the execution of the warrant for the purposes of s 26(5) and (6) of the Act.

Before the primary judge

The scheme created by s 26(5) and (6) of the Act

14    The primary judge made a number of key observations about the operation of s 26(5) and (6) of the Act, with which we respectfully agree. They may be summarised as follows:

(1)    In the earlier stages of the extradition process, bail is only granted if there are “special circumstances” justifying such a release: s 19(9A); see also s 15(6), which precludes remand on bail unless there are special circumstances. The Act therefore ordinarily proceeds on the basis of detention pending the completion of that process.

(2)    The evident purpose of s 26(5) and (6) is to protect a person subject to a surrender warrant, who will ordinarily already be in custody, from being held for an undue further period of time: see O’Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 382, per Siopis J at [23]-[24].

(3)    When a proper application is made under s 26(5) of the Act, this requires the Court to order the release of the person from custody, subject to the operation of s 26(6).

(4)    Section 26(6) qualifies the obligation imposed by s 26(5) by requiring that the Court not make the order for release when, in a case in which only s 26(6)(b) applies, it is satisfied that the person has not been removed from Australia within the two-month period “for any other reasonable cause”. The word “other” in s 26(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, provided for by s 26(6)(a). It was not suggested that such circumstances applied to the appellant.

(5)    Subsections 26(5) and (6) are binary, contemplating only two kinds of order:

(a)    an order for the release of the person from custody (provided the stipulated circumstances exist); or

(b)    an order for the dismissal of the application, to be made in only the limited circumstances identified in s 26(6),

with no authority to order a release on conditions or to grant bail or the equivalent.

(6)    Section 26(6)(b) requires:

(a)    an identification of the cause for conveyance not having taken place; and

(b)    an objective assessment of the reasonableness of that cause.

(3)    The assessment of reasonableness is not at large, but rather is directed to the particular cause for conveyance out of Australia not having taken place. Contrary to the respondents’ case before the primary judge, it is incorrect to say that the question for the Court’s determination was whether it was unreasonable for the appellant not to have been conveyed out of Australia within the two-month period.

(4)    The subjective views of those responsible for the conveyance as to the reasonableness of the delay are only material insofar as they identify the actual reason for the conveyance not having occurred within the two-month period.

15    The primary judge also considered, at [18], that s 26(5) and (6) “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”. As a result, his Honour was of the view that when s 26(6)(a) is inapplicable, the only matter to be considered under s 26(6)(b) is whether the cause of the failure to convey the person out of Australia within the two-month period is reasonable. This conclusion was the subject of the respondents’ notice of contention, effectively seeking to have such difficulties taken into account. We are inclined to the view that his Honour is correct, having regard to the plain language of s 26(6)(b), but in light of the conclusion reached about the grounds of appeal advanced, we do not need to decide this.

16    The primary judge surveyed High Court and other authority as to the meaning of phrases like “reasonable cause” in other statutory settings. This included “reasonable excuse” as a defence to a charge of possessing an irritant spray in Taikato v The Queen (1996) 186 CLR 454, quoting the following passages from the judgment of Brennan CJ, Toohey, McHugh and Gummow JJ, omitting citations, at 464 and at 466:

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.

…

[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.

17    The primary judge observed that the latter passage from Taikato was cited (and indeed was quoted) by McHugh J in Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at [108] in considering the meaning of “reasonable cause” in another criminal offence provision.

18    The primary judge also referred to Quinlivan v Portland Harbour Trust [1963] VR 25, which concerned whether an injured employee had “reasonable cause” for not giving notice of his intention to bring common law proceedings within the statutorily required six months of the accrual of the cause of action. In Quinlivan, “reasonable cause” was described by Sholl J at 28 as “cause which a reasonable [person] 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 [person]”.

19    The primary judge also appropriately took into account:

(1)    Australia’s international extradition obligations: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 540; and

(2)    the fact that some interference with personal liberty is inevitable in the process of extradition, which has as its purpose enabling adjudication of guilt or otherwise “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”: Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; 227 CLR 614 at [32], [34].

20    The primary judge concluded (at [25]) that the assessment of the reasonableness of the cause for the appellant not having been conveyed out of Australia 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”. We agree that this is the essence of the assessment required by s 26(6)(b) of the Act, supported by the authority cited by his Honour, and in particular by the passages from Taikato quoted above.

Evidence and primary factual findings

21    All of the evidence before the primary judge was by affidavit, with no objection taken or cross-examination sought. It will only be necessary to refer to the sole affidavit relied upon by the respondents in order to address the grounds of appeal in this appeal by way of rehearing. The affidavit evidence adduced by the appellant largely went to proof of the necessary formal matters, and also sought to cast doubt on difficulties in securing a flight from Sydney or Melbourne to the United States. The availability of such travel was regarded by the primary judge as secondary to the health risks posed by the COVID-19 virus. The focus of the appeal was on the quality of the respondents’ evidence.

22    The primary judge proceeded (at [26]) upon the basis that the respondents had at least an evidential onus of proof. His Honour did not say or suggest that the appellant bore any onus as to the absence of reasonable cause. The appellant’s allegation of reversal of onus therefore appears to be directed to the practical effect of not accepting certain of her submissions as to the asserted inadequacy of the evidence relied upon by the respondents.

23    The affidavit relied upon by the respondents was affirmed by Ms Karen Moore, an assistant secretary within the Attorney-General’s Department (AGD) International Cooperation Unit (ICU), which is also the location of the International Crime Cooperation Central Authority overseen and supervised by Ms Moore.

24    Ms Moore’s affidavit detailed the extradition process in relation to the appellant, including the extradition offences alleged to have been committed in California. These comprised hit and run driving resulting in death or serious injury, with a special allegation of personally inflicting great bodily injury; vehicular manslaughter with a special allegation of fleeing the scene after committing manslaughter; and destroying or concealing evidence by repairing and hiding the appellant’s car. It is alleged that the deceased was on a bicycle.

25    As the primary judge observed as to certain gaps in the evidence:

[12]    The parties did not adduce any direct evidence concerning the Covid-19 virus, its infectious nature, its effects, and the risks it presents to the populace. The Court’s knowledge of those matters was assumed. I proceed on the basis that the Covid-19 virus is infectious, and can cause serious illness and death. There is presently no vaccine or other anti-viral treatment. It poses a severe and immediate threat to human health on a national scale. The virus has entered both Australia and the US. It is the subject of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth) made by the Governor-General on 18 March 2020.

[13]    No party and, in particular, the respondents, led evidence concerning the practicalities by which extradition of a person such as the applicant are affected. The Court was not told, for example, the number of persons who would travel from the US to take custody of the applicant, nor the practical arrangements which would be made for her transport while in custody.

26    It is convenient to reproduce from the primary judge’s reasons the chronology of facts that his Honour found was disclosed by Ms Moore’s evidence, because that frames and contextualises the evidence requiring closer consideration by reason of the grounds of appeal:

Actual cause

27    The primary judge noted that the appellant and respondents characterised what had taken place somewhat differently:

(1)    The respondents’ case was that public health concerns and difficulties associated with international travel arising out of the COVID-19 pandemic were the causes of the appellant not having been conveyed out of Australia by 23 April 2020.

(2)    By contrast, the appellant identified a narrower cause of a failure by the United States to provide an escort to take her from Australia to the United States.

28    The primary judge observed that the appellant’s narrower case entailed an acceptance that in some cases the COVID-19 pandemic could be a reasonable cause for such a failure, but that she also argued that the evidence was insufficient to establish that it had been the cause. His Honour was sympathetic to the related submission by the appellant’s counsel that there was no adequate explanation for having failed to provide an escort permitting her surrender within the two-month period.

29    The primary judge also referred to the characterisation of the 17 April 2020 letter from the USDOJ to the AGD 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”, and to the detailed critique made of the respondents’ evidence, repeated at the appeal hearing. His Honour said of the respondents’ evidence from Ms Moore:

[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.

30    Those observations are apposite. While there was no explanation for the sparseness and incomplete nature of aspects of the evidence relied upon by the respondents, it may reasonably be inferred that this has been a difficult time for both Australian and United States officials involved in arranging for the appellant’s conveyance back to the United States. The live question is whether, nonetheless, the primary judge erred in finding that the evidence supported the conclusions as characterised and challenged by the appellant.

31    The primary judge’s consideration and assessment of Ms Moore’s evidence continued:

[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 [suggest] 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

32    The appellant’s case on reasonableness before the primary judge relied upon both the individual and the cumulative effect of asserted shortcomings in Ms Moore’s evidence, which may be summarised as follows:

(1)    An asserted absence of any urgency in the United States’ actions, especially after the issue of the surrender warrant on 24 February 2020, with notice of the surrender determination having been given by the AGD on 26 February 2020. The appellant contended that this on its own supported the conclusion that the conduct was not reasonable, relying in particular upon Ms Moore’s deposition to communications between 28 February and 12 March 2020 about surrender, the escort for the surrender and proposed date(s) for surrender, and, to allow for the issue of an amended surrender warrant, agreement on a timeframe for surrender from 2 April 2020.

(2)    The slowness in action in the two weeks from 24 February to 12 March 2020 and, even then, conveyance not being planned to occur before 2 April 2020.

33    These shortcomings were relied upon to submit that, acting reasonably, the officials concerned should have anticipated before the WHO declaration of a pandemic that the COVID-19 was likely to cause difficulties in relation to the conveyance and would have acted with greater urgency.

34    The primary judge cautioned against hindsight reasoning of this kind, noting, correctly in our respectful opinion, that it was notorious that the COVID-19 pandemic and the responses of countries around the world to mitigate and avoid its effects had developed rapidly. His Honour aptly described this rapidity as, in a sense, overwhelming the world. While, looking back, the developments which did occur with the pandemic could have been anticipated, his Honour did not consider that it could be said that either Australia or the United States acted unreasonably by not anticipating what had happened. His Honour noted that it was not the case that the United States did nothing to give effect to the extradition until close to the expiry of the two-month period and only then found itself in difficulties. Rather, his Honour concluded, the United States had been acting with the intention of giving effect to the appellant’s extradition and had made plans to do so well within the two-month period.

35    The primary judge described the following submissions as being correct as far as they went:

(1)    even after the declaration by the WHO of the pandemic on 11 March 2020, the United States still did not act with expedition; and

(2)    with the exception of a “courtesy” communication from USDOJ on 17 March 2020, it did not communicate at all with the AGD until a teleconference on 20 March 2020 and after that its only communications in the two months were on 28 March and 17 April 2020,

but inferred that there must have been “intervening events and communications”.

36    By way of example as to such intervening events and communications, his Honour inferred that there must have been communications which preceded the amendment of the surrender warrant, noting also that the AGD’s email of 16 March 2020 implied that there had been discussions between the AGD and the USDOJ concerning the ability to effect the extradition in the light of the COVID-19 pandemic. His Honour noted that this and later emails indicated that both the AGD and the USDOJ were conscious of the two-month limitation period. His Honour noted that the USDOJ 28 March 2020 email confirmed that it had “worked through” some of the issues associated with effecting the conveyance of the appellant. That email also confirmed that the USDOJ had asked the USMS to assume responsibility for the conveyance of the appellant and said that it had done so “in light of the public health concerns caused by the Coronavirus and the resulting travel restrictions”.

37    The primary judge noted that the evidence did not explain the switch back from the FBI to the USMS as the escort, beyond it being linked to the effects of the pandemic, but also noted that counsel for the appellant did not explain the significance which should be attached to this evidentiary shortcoming. His Honour considered that it was possible that time was lost while this occurred, but found that this tended to confirm that active consideration was being given in the United States as to the way in which the extradition was to be effected. Moreover, his Honour observed, the email of 28 March 2020 indicated that the USDOJ had given consideration as to the ability to convey the appellant from Australia by 24 April 2020. His Honour noted that the USDOJ told the AGD that it was “very unlikely” that the USMS would be able to effect the appellant’s removal before mid-May 2020. While it was true, as submitted, that the USDOJ email did not link specifically the inability to effect the transfer before mid-May to the COVID-19 pandemic, his Honour considered that was a reasonable and appropriate inference to draw.

38    The primary judge considered and accepted numerous submissions advanced on behalf of the appellant:

(1)    His Honour accepted a submission that the respondents had not explained why the conveyance could be effected by mid-May but not earlier by mid-April, but noted that even at the time of judgment there remained uncertainty as to when the extradition could be effected. Somewhat ominously in light of adverse developments in Australia and overseas since the dismissal of the appellant’s application, his Honour found that it was appropriate to take into account that in March 2020, the circumstances created by COVID-19 were much less predictable than was the case at the time of judgment.

(2)    His Honour also accepted a submission by the appellant that, despite an implication in the 17 April 2020 USDOJ letter that a lack of commercial flights between Australia and the United States had been a factor, there had in fact been multiple available flights. Despite this, his Honour found that this said “nothing about the risks, actual and perceived, in international travel”.

(3)    His Honour also accepted a submission by the appellant that the AGD had during March 2020 conveyed to the USDOJ certain means by which restrictions on international travel imposed by the ABF could be addressed, and accepted that there was no evidence from the USDOJ specifically as to consideration of those alternatives. However, his Honour considered it appropriate to infer that the reasons lay in the pandemic.

(4)    His Honour observed that the USDOJ’s 17 April 2020 letter confirmed that Australia’s requirement for international arrivals to self-isolate had led to cancellation of arrangements previously made. But his Honour also found it was understandable that the USDOJ and/or the USMS would be concerned about the risks to the health of the officers comprising the escort posed by passing through airports and spending extended periods in the confined spaces of aeroplanes and in close proximity to the appellant. His Honour found this particularly understandable in circumstances where there was no assurance that the appellant was not herself infected with the virus or a carrier of it. His Honour was of the view that it was appropriate 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 United States Department of State (USDS) on 19 March 2020. His Honour found it was reasonable for the USDOJ and the USMS to act in accordance with that advisory, noting that the USDOJ’s 17 April 2020 letter 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.

39    The primary judge’s conclusion was that, while there was “some force” in the critique by the appellant’s counsel of the quality and adequacy of the evidence relied upon by the respondents, the reasonable and appropriate inference to draw was that the appellant was not conveyed from Australia by 24 April 2020 by reason of the COVID-19 pandemic and its effects and that this constituted a reasonable cause for the conveyance not having occurred.

The appellant’s contrary overall characterisation of the evidence

40    In this appeal, the appellant relies upon the fact that, apart from correspondence with United States officials annexed to Ms Moore’s affidavit, there was “no direct evidence of the reasoning behind any action taken (or not taken) by the United States”, with there being no affidavit from a representative of the USDOJ. The appellant further submits, and complains, that the United States’ reasons for the failure to convey her upon which the respondents relied were effectively contained solely within a letter to Ms Moore from the USDOJ dated 17 April 2020.

41    The appellant next submits that the importance of the absence of direct evidence from the USDOJ is apparent when the available evidence is analysed to determine the actual cause of the failure to convey her to the United States within the two-month limitation period. She submits that the available evidence “established that the timely surrender of the Appellant was doomed by, at the latest, 28 March 2020”, because:

(1)    on 24 February 2020, the original surrender warrant was issued, naming the USMS as the escort, requiring her conveyance to be effected by 23 April 2020;

(2)    on 23 March 2020, an amended surrender warrant was issued, naming the FBI as the escort, an amendment made at the request of the United States, without any evidence as to when or why that request was made; and

(3)    on 28 March 2020, an email was sent from a United States trial attorney (name redacted) in the USDOJ to the AGD which said in part:

…we have asked the U.S. Marshals Service to assume responsibility for the removal of Ms. Chan Reyes…

…it is very unlikely that the Marshals will be able to effectuate the [removal of the Appellant] before mid-May.

42    In the context of this sequence of events being dubbed, in effect, the sole cause for the timely surrender being doomed by 28 March 2020, the appellant submits that the reason for the impossibility of effecting surrender by that date was that the United States could not provide an escort within the legislated timeframe of two months. This was said to be due to “indecision” within the United States as to the identity of the escort, such that by 28 March 2020 they were “back at square one”, with more than half of the two-month timeframe for surrender having elapsed, more than the “some days” lost that the primary judge referred to at [46].

43    As a result, the appellant submits, before turning to the specific grounds of appeal, that:

(1)    the crucial question at trial was whether the Court was satisfied that the United States’ failure to provide an escort was objectively reasonable;

(2)    on the respondents’ case, the reasonableness lay in the United States’ response to the COVID-19 pandemic;

(3)    whether the Court could be satisfied that the true cause of the failure to provide an escort was a reasonable response to the pandemic required a close analysis of the events that transpired within the USDOJ between 24 February and 28 March 2020;

(4)    the absence of any direct evidence from the USDOJ denied the Court the opportunity to apply the necessary scrutiny to those events; and

(5)    the 17 April 2020 letter from the USDOJ to the AGD annexed to Ms Moore’s affidavit, which purported to explain why the transfer was not effected within the two-month period, contained a number of literally true but materially misleading assertions, which needed to be treated with caution.

44    The correspondence referred to was admitted into evidence without objection. Once that correspondence was admitted without objection or restriction, it was evidence for all purposes, subject to its inherent strengths and weaknesses, including inferences properly available to be drawn. Although counsel for the appellant in part asserted that this Court could simply review the same evidence as his Honour and form its own view, it is clear that error must be established by that process, in the sense of showing that some aspect of the trial judge’s reasoning, or conclusions reached, are wrong: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Full Court) at [21]-[25]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45]; see also [4]-[7].

45    That does not mean that findings of fact by a primary judge of the kind presently under challenge are unassailable. To the contrary, an appeal court is not only able, but required, to conduct a real review in an appeal by way of rehearing, and, while respecting any advantage that the primary judge enjoyed (which is not a feature of this appeal with only unchallenged affidavit evidence), should not shrink from giving effect to its own conclusion: Warren v Coombes (1979) 142 CLR 531 at 551, most recently reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56]. In a case such as this where there are no contested primary facts, and no issues of witness credit, this Court is in as good a position as the primary judge to decide on the proper inferences to be drawn: Lee v Lee at [56], citing Warren v Coombes at 551 and Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]. However, the identification of error remains indispensable, whether that be in relation to a step in the reasoning process, or even just by reason of the result arrived at: Moroccanoil at [49]; Lee v Lee at [56].

Ground 1 – asserted error in reversing the onus of proof

46    This ground of appeal takes issue with the way in which the primary judge assessed the evidence adduced by the respondents, as outlined in some detail above. The appellant contends that by proceeding upon the basis that the respondents had at least an evidential onus of proof, there had been a failure to take a necessary further step of positively finding that the respondents also bore a persuasive onus. The appellant relies upon a body of general authority to argue that a party relying upon a statutory exception, such as that said to be manifested by s 26(6), bears the onus of establishing that the exception exists.

47    The appellant asserts that the primary judge’s assessment of the evidence, and rejection of the various submissions as to its inadequacy, meant that the onus of proof had been reversed, and was instead imposed upon her. In support of that conclusion, the appellant takes issue with the primary judge’s analysis of the evidence, accepting part of the submissions made about that evidence, and rejecting other parts.

48    The appellant submits that in the absence of direct evidence from a United States government representative, his Honour engaged in a process of speculative reasoning. This was said to amount to effectively working backwards from a conclusion that the COVID-19 pandemic must have been the cause of the failure to provide an escort, which was said to amount to a reversal of onus because it required the appellant to prove that was not so.

49    Taken at face value, these submissions as to what the primary judge did, if accurate, would tend to suggest serious and fundamental error by his Honour. However, as the following analysis demonstrates, those assertions are rhetorical, rather than based on any sound analysis of his Honour’s reasons.

50    A reversal of onus is not established simply by demonstrating that the Court has decided, on the basis of evidence before it, however imperfect, that the evidence proves (or does not, as the case may be) what was required to be established by one party. Far from being a reversal of onus that is exactly the task that the primary judge was required to undertake. The primary judge’s reasoning reflects a conventional assessment of that evidence and deciding upon of the conclusions it was capable of supporting. Rejecting submissions made on behalf of the appellant did not involve any reversal of onus. It was a proper matter for his Honour to evaluate the evidence that was before him, which is precisely what took place. The question of whether that evaluation was erroneous in some way is best dealt with as part of ground 2, by which error in the conclusion reached as to reasonable cause is asserted.

51    There is nothing to suggest that the primary judge reached the necessary state of satisfaction other than by reference to the evidence adduced by the respondents, including by the drawing of inferences from that body of evidence. The conclusions reached did not depend upon there being no onus on the respondents, nor upon the appellant bearing some onus and failing to discharge it. Put simply, with weaknesses in the evidence being identified, his Honour found that there was, nonetheless, sufficient evidence to satisfy the test in s 26(6)(b).

52    The first ground of appeal must therefore fail.

Ground 2 – asserted error in finding that the failure to convey the appellant in time was for a reasonable cause

53    The substance of the appellant’s submissions, both in writing and in oral appeal submissions, points to different conclusions that the primary judge could have reached, without, as the following reasons demonstrate, establishing any error either in his Honour’s reasoning, or in the ultimate conclusion reached. The approach taken is starkly revealed by the written submission that the reasons given in the 17 April 2020 letter from the USDOJ to the AGD, and relied upon by Ms Moore in her affidavit, either did not “withstand scrutiny as being the actual reasons for the failure to provide an escort, or [demonstrated] that the United States’ response to events related to the COVID-19 pandemic was not reasonable”. There was no error in the scrutiny of that evidence contained in his Honour’s reasons.

54    We now turn to the details in the primary judge’s reasons and the criticisms made of them.

55    The appellant’s submissions largely turn on [36]-[38] of the primary judge’s reasons, reproduced above. In relation to [36], the appellant submits that matters referred to by the primary judge could not be more than corroborative of any independent evidence that the COVID-19 pandemic lay behind the failure to provide an escort, and were not of themselves capable of establishing that fact. The problem with that argument is that it ignores the fact that each of the matters referred to was based on evidence before his Honour, and seems to deny that inferences can be drawn from disparate facts that are neither disputed, nor even controversial, let alone based on evidence that was objected to or challenged in any way. The appellant does not suggest that the 17 April 2020 letter from the USDOJ to the AGD is in any way incorrect in recording the circumstances referred to and relied upon by his Honour, namely:

(1)    the classification by WHO of COVID-19 as a pandemic on 11 March 2020; or

(2)    the instructions given by the US Office of Management and Budget on 15 and 17 March 2020 to United States federal government agencies to adjust their operations so as to mitigate the pandemic including by minimising face-to-face interactions; or

(3)    the USDS posting a Global Level 4 “Do Not Travel” advisory by which United States citizens and residents were urged on 19 March 2020 to avoid all international travel, and restrictions imposed on entry into Australia by the ABF.

56    In those circumstances, there is no error in the primary judge concluding that it would be unrealistic to think that these developments were not influential in the USDOJ’s and USMS’s response to the extradition of the appellant. To the contrary, our review of the evidence leads us to the same conclusion.

57    In relation to [37] of the primary judge’s reasons, the appellant:

(1)    takes issue with his Honour finding that it was “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” in the absence of evidence as to what the arrangements for such travel would be;

(2)    characterises his Honour’s reference to difficulties created by restrictions imposed by Australia as being contrary to evidence which demonstrated a willingness by Australian authorities to assist in overcoming those difficulties, being a reference to exemptions to the travel ban that could be sought, and the appellant submitting to his Honour that it was unreasonable for the United States authorities to be unwilling to accept that assistance; and

(3)    characterises his Honour’s concluding statement that the measures offered “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” as missing the point because the United States, rather than exploring those options, “hastily and unilaterally cancelled the travel arrangements”.

58    Dealing with each of those impugned conclusions in turn:

(1)    The inference that a view had been formed that travel by the escorts could not be undertaken without virus-related risk was correctly drawn by the primary judge, and did not require any precise evidence as to what the arrangements for such travel would be, given the highly contagious nature of COVID-19.

(2)    The primary judge’s reference to difficulties created by restrictions imposed by Australia was not contrary to the evidence because of the AGD’s willingness to seek exemptions to the travel ban. The issue was not confined to the ability to travel, but extended to other requirements, such as quarantine, with its own difficulties, including an extended stay by the escort officers in Australia, rather than just a return trip.

(3)    The primary judge’s characterisation of the measures offered as addressing escort convenience and the protection of Australia, rather than the risks to the health of the escorts involved, was correct.

59    In relation to [38] of the primary judge’s reasons, the appellant takes issue with his Honour accepting as plausible the statement in the 17 April 2020 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 her extradition. The appellant asserts that there was no evidence as to what the proposed travel arrangements were or what precautions against exposure to COVID-19 were proposed. The primary judge, again by a conventional process of evaluation, inference drawing and fact-finding, correctly regarded a representation of that kind, which also applied to other pending extraditions, as being a plausible explanation, in the context of a global pandemic unprecedented in modern times.

60    Each of the remaining, but lesser, arguments to like effect about his Honour’s reasons at [46]-[48] must similarly be rejected as falling short of demonstrating error in his Honour’s reasoning or conclusions. Again, to the contrary, our review of the evidence leads us to the same conclusions. It does not assist the appellant to point to better or stronger evidence that might have been adduced, but was not.

61    The second ground of appeal must also fail.

Conclusion

62    The appeal must be dismissed.

Associate:    

Dated:    9 September 2020