CAT/C/41/D/316/2007
Page 3
The facts as presented by the complainant
2.1 The complainant was arrested in Orange, New South Wales, Australia, on 19 September
2002 under a provisional arrest warrant. On 12 November 2002, the Minister for Justice and
Customs received an extradition request from the USA in relation to one count of murder
allegedly committed by the complainant in May 2002, as he was the subject of a felony
complaint before the Superior Court of California, San Bernardino, Barstow District. The request
indicated that, pursuant to Article V of the Treaty on Extradition between Australia and the USA,
the District Attorney would not seek or impose the death penalty on the complainant. In
December 2002, a magistrate determined that the complainant was eligible for surrender and
committed him to prison pending the completion of the extradition proceedings.
2.2 The complainant unsuccessfully challenged the magistrate’s decision or his eligibility to
surrender in the Supreme Court of New South Wales, the Full Court of the Federal Court, and
the High Court. At issue, inter alia, was the application of s. 22(3) of the Extradition Act of 1988,
under which the eligible person can only be surrendered in relation to a qualifying extradition
offence if, inter alia:
(a) the Attorney-General is satisfied that there is no extradition objection in relation to the
offence;
(b) the Attorney-General is satisfied that, on surrender to the extradition country, the
person will not be subjected to torture;
(c) where the offence is punishable by a penalty of death—by virtue of an undertaking
given by the extradition country to Australia, one of the following is applicable:
(i) the person will not be tried for the offence;
(ii) if the person is tried for the offence, the death penalty will not be imposed on
the person;
(iii) if the death penalty is imposed on the person, it will not be carried out.
2.3 Before the Federal Court, the complainant, inter alia, claimed that he would be subjected
to torture in California, and that his trial would be prejudiced because of race and religion, as he
was a Hispanic-Muslim. He alleged that the US law enforcement authorities had intentionally
released prejudicial pre-trial publicity against him. In particular, he referred to the America’s
Most Wanted programme, featuring his case, which identified him as the deceased’s killer, and
to discussion about his case in on-line chat rooms created in California, which demonstrated that
the local population was hostile towards him.
2.4 The adverse publicity had been obtained by prison guards in Australia and released to other
inmates. This had led to him being physically and sexually assaulted by prison guards and other
prisoners on numerous occasions over a 12 month period while detained at Long Bay prison. In
particular, he claims that he was poisoned by unknown persons; burned with hot water by other
prisoners; hit over the head by other prisoners and then dragged; his cell bed was defecated on by
police dogs; he was forced to strip naked and pose as a statue; threatened by a prison guard to be
placed into an area with violent inmates. After one incident, he was hit and had to be given
stitches to the head, as documented in hospital records. In December 2003 he was transferred to
the Silverwater Remand Centre. In April 2004, after he was called a “piece of shit” by a prison
guard, he filed a formal complaint. As a result, he was beaten by a group of guards. He reported
another incident of beatings by prison guards which occurred in January 2005.