Case: McCrea v Minister for Justice and Customs [2005] FCAFC 180 ; (2005) 145 FCR 269
Outcome: applied
The applicant submitted that a death penalty undertaking had not been given which conformed with s 22(3)(c) of the Act. He further submitted that such an undertaking was required in his case because the extradition offence could attract the death penalty. For those reasons, he contended that the Minister should not have determined to surrender him and should have exercised his discretion under s 22(3)(f) not to surrender him. The applicant submitted that he was not asking the Court to inquire whether the United States would in fact honour its undertaking not to seek or apply the death penalty: see McCrea v Minister for Justice and Customs [2005] FCAFC 180 ; (2005) 145 FCR 269. Rather his complaint was that the undertaking given did not comply with the requirements of s 22(3)(c) of the Act as established in McCrea . 34 The initial undertaking was provided by Mr Fermin, in his earlier affidavit. In his supplementary affidavit, Mr Fermin said that none of the special circumstances listed in s 190.2 of the Code applied to the extradition offence for which the applicant's extradition was sought and that no special circumstances had been alleged in the charging document. In the result, the death penalty was not an available punishment for the charge against the applicant. The Embassy of the United States of America in Canberra provided a diplomatic assurance, dated 28 February 2005, in the following terms: 'Based on the information provided by the Deputy District Attorney for San Bernardino County, California, and in accordance with Article VIII of the 1974 U.S. Australia Extradition Treaty, as amended by Article 5 of the 1990 Protocol Amending the Extradition Treaty, the United States Government assures the Government of Australia that the death penalty will not be sought or imposed against Lawrence Rivera.' 35 A further assurance was given by Mr Michael Ramos, the then recently elected District Attorney, on 28 September 2005, stating that '[T]he San Bernardino County District Attorney's Office will not seek to impose the death penalty on Lawrence Rivera on the instant matter'. 66 The only issue potentially of substance, in my opinion, raised by the applicant concerned whether the Minister could have been satisfied about the matter addressed by s 22(3)(c) , namely that an appropriate undertaking concerning the death penalty had been given. The Minister had an undertaking from the United States and information derived from affidavits concerning Californian law and the charge that had been laid. In McCrea , the Full Court said (at [25]): 'It does not follow from the conclusion that a legally enforceable undertaking is not needed that the requirements of s 22(3)(c) will be satisfied merely by the giving of an undertaking that follows the language of the provision and which has been made by a person with appropriate authority. An evident object of s 22(3)(c) is to provide a safeguard against the carrying out of the death penalty upon a person extradited from Australia under the Act. Whilst the object of the provision can be variously stated, the seriousness of the subject matter suggests that it is very unlikely that nothing more than compliance with a verbal formula was intended. Consistently with the object of the provision, there is much to be said for the view that the expression "by virtue of an undertaking" requires that the decision-maker consider whether the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the penalty of death would not be carried out. It would seem unlikely that the object of the provision was intended to be achieved only by the favourable (to the person accused) exercise of the discretion conferred by s 22(3)(f).' (emphasis added) 67 While the observations in the latter part of this passage are only tentative, I think it is appropriate that, as a single judge, I proceed on the basis that those tentative views correctly state the law. Perhaps my approach might be different if I held a strong view to the contrary, but I do not. Accordingly, in view of the submissions made by the applicant, it is necessary to ascertain whether the Minister, in the face of an undertaking that the death penalty would not be sought or imposed, considered whether it was an undertaking which, in the context of the system of law and government of the United States, had the character of an undertaking by virtue of which the penalty of death would not be carried out. 68 The essence of the case of the applicant was that the question of whether facts existed which fell within the concept of 'special circumstances' for the purposes of ss 190.1 and 190.2 of the Code was a matter to be determined by the jury and, at least impliedly, were not matters the determination of which was within the control of the prosecuting authorities or the trial judge. The authorities referred to by the applicant, namely the judgments of the Supreme Court of the United States in Ring and the earlier case of Apprendi , represent a line of authority that facts which establish legislative special circumstances, and which enable or require the imposition of the death penalty, must be found by the jury and not by a trial judge in the course of a sentencing hearing. However, having regard to the affidavits of Mr Fermin (the relevant parts of which were before the Minister in a summary way) who was the Deputy District Attorney responsible for prosecuting the applicant, a statutory condition precedent to 'special circumstances' being considered was that 'special circumstances' are charged. Mr Fermin deposed that they had not been charged.