Judgment Delivery - Transcript of Video

McCrea v Minister for Customs & Justice [2004] FCA 1273

6 OCTOBER 2004

[Justice North walks into Court room, bows and sits down.]

Court Officer: The Federal Court of Australia is now in session. Would you please be seated.

Justice North: Please call the case for judgment.

Judge’s Associate: McCrea and the Minister for Customs and Justice, for judgment.

Justice North: As is usual now with the Federal Court in some cases of public interest, I have prepared a brief statement to accompany the reasons for judgment which will soon be delivered.  I must emphasise that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary which I will read is intended to assist in the understanding of the main but not all the conclusions reached by the Court. It is therefore necessarily incomplete.

This case is about whether the Minister for Customs and Justice was entitled to determine to surrender Michael McCrea to Singapore.

Singapore alleges that Michael McCrea murdered his driver and his driver’s girlfriend in Singapore in about January 2002.

Mr McCrea fled to Australia, and Singapore requested his extradition so that he could be tried in Singapore for the murders.  If he is convicted of murder in Singapore he will face a mandatory death sentence. The President of Singapore, however, has the power to commute the death sentence.

Australia has for some time had a policy against capital punishment. Capital punishment is not used in Australia. Further, Australia has a policy that it will not extradite fugitive offenders to a country which has the death penalty unless that country undertakes that if the fugitive offender is convicted that person will not be executed.

Section 22 subsection (3)(c) of the Extradition Act reflects this policy. It provides that the Attorney-General may not surrender a person unless the requesting country has provided an undertaking not to execute the fugitive offender if returned to the requesting country.

In light of this provision, Australia asked Singapore to give an assurance that if Mr McCrea were returned to Singapore and convicted of murder he would not be executed.

Singapore gave such an undertaking. The Minister for Customs and Justice, acting as delegate of the Attorney-General, then determined to surrender Mr McCrea to Singapore.

Mr McCrea has challenged that determination. He argued that, for various reasons under Singapore law, the assurance was not valid or enforceable.

There is a principle that the Courts will not adjudicate on the acts of another sovereign power within its territory. This principle applies to the interpretation of section 22 subsection (3)(c)(iii). If the Court had to determine whether the assurance was valid or enforceable, the Court would have to rule on an act of Singapore. For this, and other reasons contained in the judgment, I have decided that the section simply requires Singapore to give an undertaking in the terms specified. As Singapore has provided an undertaking in those terms the requirements of section 22(3)(c)(iii) have been met.

Under a separate provision the Attorney-General has an over-riding discretion whether to surrender a fugitive offender. Parliament has made it clear that the decision whether the undertaking should be accepted or not is a decision for the Attorney-General, and not for the Court. It was open to the Attorney-General to consider the validity or enforceability of the undertaking in the exercise of that general discretion. Mr McCrea has not challenged the exercise of that aspect of the discretion.

Consequently Mr McCrea’s challenge to the Minister’s decision based on section 22 subsection (3)(c)(iii) must fail. This means that Mr McCrea may now be extradited to Singapore.

The full orders of the Court are:

1 That the application is dismissed.

2. The question of costs is reserved.

And I publish my reasons.

[Justice North passes document forward.]

Justice North: Please will you adjourn the Court.

[Fades out]

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