McCrea v Minister for Customs and Justice of the Commonwealth

[2005] HCATrans 761

[2005] HCATrans 761

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M109 of 2005

B e t w e e n -

MICHAEL McCREA

Applicant

and

MINISTER FOR CUSTOMS AND JUSTICE OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 13 SEPTEMBER 2005, AT 9.58 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR P.W. LITHGOW, for the applicant.   (instructed by Grundy Maitland & Co)

MS M.M. GORDON, SC:   May it please the Court, I appear with my learned friend, MR G.H. LIVERMORE, for the respondent.   (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, if I can first apologise for the piecemeal way in which our materials have been provided to the Court.

KIRBY J:   Everything took so long below that we thought a degree of expedition might be helpful in this Court.  After all, your client is in prison.

MR NASH:   Then if I may deal quickly with a couple of points raised by the respondent.  The question before the Court and before the courts below was and is whether a prerequisite to the exercise of the power of the Minister to surrender had been satisfied.  In our submission, this is fundamentally a question for the judiciary and not for the Executive.  Secondly, in relation to those matters raised in the reply, although the principles of comity may operate to restrain Australian courts from exercising jurisdiction over foreign states in respect of acts committed by a foreign state within its own territorial jurisdiction, this is not what we are concerned with here.  Here we are concerned with the interpretation of a Commonwealth statute and whether the undertaking given satisfies the prerequisites to the exercise of the power to surrender.

GUMMOW J:   Mr Nash, could you just turn to page 2 of the Minister’s submissions.  One of the points made there is point (3) at line 10 and it is said that:

if the Applicant’s construction of s 22(3)(c)(iii) were adopted, the section could never be satisfied. It could never be determined as a matter of objective certainty that any undertaking would be honoured whether the undertaking was within or not within power.

What do you say about that?

MR NASH:   With respect, your Honour, we do not contend that there must be an objective certainty.  What we are concerned with – and perhaps our attitude has varied as we have come up the courts – is the effect of the undertaking; not a question of objective certainty but, rather, whether such an undertaking has the effect that a person will not be executed.

KIRBY J:   Yes, but in virtually every country of the common law which has followed the tradition of the royal prerogative of mercy it is going to be identical to the situation that is now in place in Singapore. There can be changes of government, there can be changes of circumstance, but when countries give undertakings they normally adhere to them. That is all that the Act seems to contemplate.

MR NASH:   Well, with respect, your Honour, we say that there is a difference between a country intending to honour, having every good intention in the world ‑ ‑ ‑

KIRBY J:   You concede that Singapore is in that position?

MR NASH:   ‑ ‑ ‑ and the constitutional power – your Honour will note that the prerogative of mercy, although it can be exercised only at a particular time, can generally be exercised on effectively any grounds whatsoever.

GUMMOW J:   But on advice. 

KIRBY J:   It is not just the whim of the President of the State of Singapore.  It is something that is done on the advice of the Executive Government of Singapore.

MR NASH:   Yes, your Honour, and he acts on the advice of cabinet, but we say under Article 22P, according to certain criteria, here we say the promise is a promise that certain things will happen.  It is not a promise, in our submission, which is valid under the terms of the Singapore Constitution.  We also go further, your Honour, and say this – and this is supplementary argument – that despite the proposition that your Honour has put to us, that where one is relying on the common law prerogative of mercy the undertaking cannot in one sense be binding.

KIRBY J:   But that would be so in every country of our legal tradition, let alone countries of different legal traditions. Just those with which we are familiar, such as Singapore, they will all be in the same boat and that would mean that the Act just could not really attach, could not work. It is obviously contemplating that in many countries, Commonwealth countries, that it will work in the way that is contemplated by the undertaking received from Singapore. Your theory of the Act really makes the Act inoperative and that cannot be what Parliament intended.

MR NASH:   It is an undertaking by virtue of which, your Honour – if the undertaking is an undertaking given in relation to the exercise of the prerogative of mercy in a country where the prerogative is exercised, then the criteria – coming back to the point earlier – on which that act of clemency can be based are completely open ended. 

What one has in Singapore is not merely a procedure, but we go further and say that one has implicit criteria, that what is happening or what is being contemplated here is that the power under Article 22P will be exercised irrespective of what is contained in the reports of the two members of the judiciary whose reports are a prerequisite to the opinion of the Attorney‑General.  What one has is a situation where the reports of the two judges and the Attorney‑General’s opinion are effectively to be torn up and disregarded because of this undertaking.

KIRBY J:   Well, that is one way to put it.  The other way is that that report and those recommendations would be made having regard to the fact that an undertaking has been given as the foundation for securing the extradition of the accused to Singapore and without which the accused would never have been able to be tried in Singapore.

MR NASH:   Well, with respect, your Honour, that contains a number of assumptions which, in our submission, are not necessarily borne out by the material before the Court or the material before the courts below.  In particular, one would expect the reports from the members of the judiciary to relate to the seriousness of the crime, the circumstances of the crime and not to have regard to the Executive undertaking.

KIRBY J:   But in the end it would remain for the President of Singapore to exercise what we call the prerogative of mercy.

MR NASH:   Yes, your Honour.

KIRBY J:   That would be so under Singapore law and that would be on the basis of a recommendation that that prerogative be exercised in favour of the commutation of the death penalty by reason of the undertaking that has been given by Singapore.

MR NASH:   That of course, your Honour, ignores the question of the weight to be given to the expert opinion as to the constitutionality of such a procedure.  Evidence was given below to the effect that to exercise the power now – effectively exercise the power now and disregarding the reports from the judiciary would infringe Article 22P.  If that is the case, then we have a case.  I am sorry about the unfortunate choice of words.

KIRBY J:   No, I understand what you are saying, but has there been a single case in Singapore where the dire consequences that you are tendering before us has ever occurred?

MR NASH:   Your Honour, so far as we could ascertain there has not.  There has been one case in which an undertaking was given and the person was in fact convicted of manslaughter I think and not murder.  There has not been one case – and I think there was evidence to this effect below and I wish not to be held to that – where there has been a commutation of the death penalty on the basis of an undertaking given in terms effectively of section 22(3)(c).

KIRBY J:   Have you found any other Commonwealth country which has given such an undertaking and which has thereupon proceeded to carry out a death penalty?

MR NASH:   No, your Honour, but I must admit that our researchers have not gone to that area.

KIRBY J:   It would be such a scandal that it just is hard to conceive it, at least in a Commonwealth country.  I mean, it may be that in some other systems it could occur and that that is a matter for the Minister to take into account in reaching the final conclusion, but it seems very unlikely, at least in a country like Singapore, and has been found by Justice North that it would not happen.

MR NASH:   With respect, I think Justice North did not – I know he did not in fact find that.  I think he found that there was the intention ‑ ‑ ‑

GUMMOW J:   It is paragraph 58, is it not, of his reasons?

MR NASH:   Yes, your Honour.  With respect, your Honour, it is all in terms of intention, not in terms of what will actually happen.

GUMMOW J:   Yes.

MR NASH:   In the Full Court decision there is a clear slide, we say, from our concession that there was an intention to honour – in paragraph 14 I think it is – to a conclusion in paragraph 19 that we had conceded ‑ ‑ ‑

KIRBY J:   Do you adhere to that concession that Singapore intends to honour the undertaking?  But, as I understand it, your submission is that that cannot stand against the law of Singapore and that when the relevant moment comes the awful fact will come home to the officials in Singapore that the undertaking is of no legal effect.

MR NASH:   Not only of no legal effect, your Honour, but may cut across the operation of Article 22P.  In that context, we wish to add that where there is a risk – and we are not talking a fanciful risk here – that the undertaking may not be one which can be honoured, then it is not an undertaking by virtue of which a person will not be executed.

KIRBY J:   Mr Nash, from a practical point of view, when one takes into account the important policy which has been endorsed by the Federal Parliament in terms of section 22(3) of our Extradition Act, a decision by a country which has received an extradited person to, as it were, go behind and contradict such an undertaking would be such a terrible affront to the undertaking that had been given that one retreats from the thought that that would happen, certainly in a case of a state like Singapore.  Now, is that an appropriate matter for me to take into account or not, looking at the practicalities?

MR NASH:   Well, looking at the practicalities, your Honour, we say that that can be taken into account clearly, but if our contentions are correct in relation to Article 22P cannot override the impact of Article 22P.

GUMMOW J:   What is it about Article 22P?

MR NASH:   We say, your Honour, that Article 22P requires the ‑ ‑ ‑

GUMMOW J:   It does not require the cabinet to advise in a particular fashion, does it?  It requires the cabinet to have particular material before it before it advises.

MR NASH:   Yes, your Honour, and we say that that implies that that material will be taken into consideration.  In the present case, if the undertaking is valid and effective, then the material in the judges’ reports, assuming that it does deal with the matters which we would anticipate it would deal with, is irrelevant to the decision of cabinet.  The decision of cabinet is foreclosed before the judges’ reports are obtained and before the opinion of the Attorney‑General based on those reports is obtained.

KIRBY J:   Presumably the provisions of the law of Singapore were taken into account by the Republic of Singapore in giving the undertaking that it has given.  It is a solemn undertaking that is required by Australian law and, as the history of this case shows, it was tendered in one form and that form was not sufficient and, accordingly, the undertaking was required in the form of the Australian statute and was then given.

MR NASH:   That is correct, your Honour, and, in fact, the undertaking which was originally tendered amounts in substance from the evidence to the same undertaking as the undertaking that was given, except in the words used.

KIRBY J:   Yes, but Australia indicated the great seriousness that it attaches to the undertaking and its obligation to comply with its own law by requiring that it be given in terms of the Extradition Act of Australia and it was then given in terms of that Act.

MR NASH:   Yes, your Honour, but it means no more than the undertaking which was originally given.  What has happened is the semantics have changed, but the substance has not.  If the original undertaking was ineffective or insufficient, the undertaking now given with different words amounting to the same thing is also inadequate, in our submission.  If the Court pleases, I have heard the first buzzer, unless there are questions.

GUMMOW J:   Yes, thank you, Mr Nash.

MR NASH:   If the Court pleases.

GUMMOW J:   Yes, Ms Gordon.

MS GORDON:   May it please the Court.  The application for special leave should be refused.  The questions posed by the applicant do not arise and they do not arise because they adopt a construction of section 22(3)(c) which is not open.  It is not open because it ignores the nature of the necessary undertaking.  It is an undertaking from Singapore to Australia.  Secondly, it requires an inquiry to be undertaken into the validity and enforceability in Singaporean law of what is an undisputed solemn undertaking given by Singapore to Australia. 

Now, that inquiry is not required, not appropriate and not possible. It is not required because it is contrary to the express words of the section and the scheme of the Act; it is not appropriate because it is contrary to the principles of international comity and practice, the principle of non‑adjudication and decided case law both here and overseas; and it is not possible because, as it seems to be conceded by my learned friend, it could never be determined as a matter of objective certainty that the undertaking would be honoured whether it was within or without power.

KIRBY J:   How does Australian law under the Extradition Act accommodate the fact that a country might be unstable and might not be able to give an undertaking that would be carried out?  I leave aside a country like Singapore, but take, for example, Iraq before the change of government.  Now, how does the Extradition Act cope with the unpredictabilities and unreliabilities of that situation?

MS GORDON: In a number of ways, your Honour. First of all, the Act itself by Parliament requires you to obtain the necessary undertakings and assurances set out in section 22(3)(c) and (d), and there are others. Secondly, it permits, as occurred here, for people to put material before the Minister at the time of the exercise of the discretion to raise matters of concern if he or she wished to. Here none were put to the Minister. There has been no challenge to the exercise of that discretion. Thirdly, because it is a question for the Executive, Executive at each time it enters into international relations with a foreign power reconsiders not only (a) whether it will enter into them but (b) will continue those relations. Questions of policy and questions that your Honour has raised are questions for the Executive which arise at each point in that relationship. That is the basis upon which, as your Honour pointed out to my learned friend, the Extradition Act is based.

KIRBY J:   So you say the way in which it is accommodated here is by the Executive of this country insisting on an undertaking in terms of the Extradition Act, securing that and then giving opportunities for submissions and then making the decision that in this case it is appropriate and lawful to receive and act upon the undertaking and that that is what the Executive did?

MS GORDON:   Yes, your Honour.

KIRBY J:   Have your researchers found any case of a Commonwealth country, a member of the Commonwealth of Nations, which has given an undertaking of the kind that is referred to in section 22(3)(c) of our Extradition Act subsequently reneging on such a ‑ ‑ ‑

MS GORDON:   No, your Honour, and that is not surprising.  It is not surprising because, as your Honour pointed out, it would be a diabolical situation not only for a country who had sought the surrender of somebody not to comply with that undertaking in relation to its relations with Australia, but its relations with every other country.  This entire Act, as your Honours will know, arises out of the London scheme, but also reflects other international relationships, and is based upon the basis that countries enter into international relations with others based upon faith.

KIRBY J:   Now, Mr Nash scores a hit, I think, by pointing out that Justice North’s conclusion was not a finding of fact that Singapore would in fact honour the undertaking – not having the gift of prophecy, perhaps his Honour held back from doing that – but that it presently intended to honour the undertaking.  Is that a fair observation by Mr Nash?  What is your answer to it, on the basis of the paragraph ‑ ‑ ‑

MS GORDON:   The answer to it is twofold, your Honour.  First of all, one finds in paragraph 58 the finding of fact by Justice North.  One also finds in paragraphs 12, 14 and 19 of the Full Court’s decision the way in which the Full Court dealt with it.  At paragraph 12, which is on page 31 of the application book, they record the finding by Justice North.  At paragraph 14 they then deal with the applicant’s contentions and recite, as is the fact, that they:

did not contend that the Republic of Singapore did not presently intend . . . nor did he challenge the primary judge’s observation about Singapore’s intention to honour it.  That, he said, was not the point.

And then at 19:

it was no part of the appellant’s case that the assurance . . . in fact given . . . would not in fact be honoured.

Now, the evidence was given both by the applicant’s witnesses and by the respondent’s witnesses before Justice North that it would be honoured by Singapore and they did not doubt it.  It has never been the subject of their complaint.  Their complaint has been that in the construction of this section of this Extradition Act something more is required than what is found in the expressed words.  That is, there must be an inquiry by this Court into whether or not this assurance given was valid and enforceable. 

Now, in relation to that, can we say a number of things.  The first is that it was the applicant’s witnesses’ own evidence that there was no constitutional provision expressly authorising or prohibiting the Government of Singapore from giving the assurance that it did.  Secondly, that the undertaking was issued for reasons of comity between nations.  Thirdly, it was conceded by the applicant’s own witnesses that a decision by the President of Singapore on the advice of cabinet to comply with the undertaking and grant a pardon was not justiciable in Singapore.

So all of the academic arguments which we say do not arise for the reasons set out in our submissions come to nought when one understands and realises that it was accepted that the giving of the pardon by the President on the advice of cabinet in respect of this assurance, which your Honours will have seen from the materials was given by cabinet who had power to give it, is non‑justiciable in Singapore. 

Now, we say you never get to that question. You never get to that question because it is not the way in which the Act is based. It is not what the express words of the Act say and it is contrary to all of those principles of international comity and practice which we have set out. But if you have to get it – and we say you do not – then it is a complete answer to what are these allegedly academic and interesting points.

GUMMOW J:   Thank you.

MS GORDON:   If your Honour pleases.

GUMMOW J:   Yes, Mr Nash, anything in reply?

MR NASH:   Very briefly, if the Court pleases. One, there is no Extradition Treaty with Singapore. Two, section 22(3)(c) does not speak of the satisfaction of the Minister, does not speak of an undertaking that – it speaks of an undertaking by virtue of which, to paraphrase. There has been at no stage, from my recollection of the evidence, a concession by the applicant or by its witnesses that the undertaking would be honoured or that the President would, on the advice of cabinet, grant a pardon; rather, the evidence has been that the President had a problem granting a pardon on the basis of the undertaking without giving consideration to the judicial reports.

KIRBY J:   But what do you say about the evidence that suggested or said that such a challenge is not justiciable in Singapore?

MR NASH:   There was clear evidence, your Honour, that the exercise of the power to pardon was non‑justiciable.  One of the witnesses for the respondent in fact contended at one stage that it was justiciable but gave up.  The fact that the exercise of the power is non‑justiciable does not render the exercise of the power valid or invalid.  It says nothing about the constitutionality.  It may say something about what in fact may happen, but it presupposes, if our argument about Article 22P is correct, that the cabinet would give advice to the President contrary to the requirements of Article 22P.

KIRBY J:   And in accordance with an undertaking given by one nation state to another, which seems both as a matter of fact and as a matter of law to be likely to the highest degree of probability.  This is the difficulty I have with your notion, Mr Nash.  It rests on an argument of legal interpretation of a Singapore law, but not one that seems to have any reality in the relations between states which are in any case matters for the Executive Government and not really for the courts.  The Minister has to judge these things in deciding whether finally to grant the extradition.  That is how it is suggested the issue of unreliability of undertakings comes to be taken into account under our extradition law.

MR NASH:   With respect, your Honour, that gives, we say, insufficient weight to the words of section 22(3)(c) which, it is our submission, effectively takes that aspect of the prerequisites out of the determination of the Executive and places it squarely as a prerequisite to be determined by the judiciary.

KIRBY J:   Yes, I think we have the problem.

MR NASH:   If the Court pleases.

GUMMOW J:   Thank you, Mr Nash.  We will take a short adjournment.

AT 10.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.32 AM:

GUMMOW J: Section 22(3) of the Extradition Act 1988 (Cth) (“the Act”) provides that an eligible person is only to be surrendered in relation to a qualifying extradition offence if the Minister is satisfied, relevantly, that, where the offence is punishable in the extradition country by a penalty of death, an undertaking is given that:

if the death penalty is imposed on the person, it will not be carried out.

Section 22(3)(c)(iii) so states.

The present applicant is an eligible person. The Republic of Singapore has given an undertaking in terms of the Act. The Minister has stated that he has the requisite satisfaction. However, the applicant says that the undertaking is not effective in law and does not satisfy the requirement of the Act. The applicant does not contest the findings below that Singapore presently intends to honour its undertaking. However, he argues that the undertaking is not valid and enforceable in Singapore as a matter of law and that under Australian law that is a prerequisite to extradition to Singapore.

It is obvious that the requirement of such an undertaking is a matter of high legal policy in death penalty cases. This is evident from the terms of the Australian law enacted by the Federal Parliament. However, the Act does not and, as a matter of practicalities, could not require a court reviewing the lawfulness of the proposed extradition to predict unpredictable events or to speculate on the possibility that a country giving such an undertaking to the Australia would later renege on its undertaking and proceed to carry out a sentence of death. In the case of Singapore, a Commonwealth country, the undertaking has been given in terms required by the Act of the Australian Parliament. That is all the Act requires. The undertaking is sufficient to sustain the decision of the Minister.

In the Federal Court of Australia the primary judge found that Singapore intends to honour its undertaking.  That finding was not challenged in the Full Court.  No error is shown in the reasons of the Full Court of the Federal Court to warrant the intervention of this Court.  We are unconvinced that any error has occurred warranting the grant of special leave.  Accordingly, special leave is refused with costs. 

We will now adjourn.

AT 10.35 AM THE MATTER WAS CONCLUDED