A young American woman dies while scuba diving on her honeymoon in Australia in 2003. After lengthy police investigations, an inquest in 2008 finds that it is likely that her husband (an experienced diver) killed her by holding her under the water. The husband voluntarily returns from the U.S. to face murder charges in Australia. He pleads guilty to manslaughter, and is sentenced to 18 months in prison. But is that the end? Absolutely not.
Following outrage at the length of the husband’s sentence on the part of the woman’s family and others, a prosecutor in Alabama (where the couple had lived) wants to charge him with murder there as well. The prosecutor therefore seeks information and evidence from Australia. Then things get even more interesting – there is wrangling over whether information will be provided, with the Attorney-General in the Australian state that imprisoned the husband (Queensland) saying that the Alabama prosecutor needed to take the death penalty off the table as a sentencing option in order for assistance to be provided.
So the Alabama Attorney-General promises, in writing, that the death penalty will not be sought in the case, and it seems the process will now move forward. A grand jury in Alabama considers whether to indict the husband on murder charges. The date of his release from the Queensland prison comes around (November 10, 2010). Then the Australian federal government gets involved, saying that it wants further assurance from the U.S. federal government that the death penalty will not be sought before allowing any immigration processes (i.e., deportation) to proceed. The Alabama prosecutor is frustrated – he says that the assurance already given is enforceable in the U.S. at both the state and federal level.
I’ve been following this story for a while now, waiting to see what would happen when the husband was released from prison in Australia. I’ve written before about Australia’s views on the death penalty, and in this case the laws and procedures that give effect to these views are very much in play, as are Australia’s international obligations.
It appears from the various reports that formal extradition processes haven’t actually commenced. If a formal request ends up being made, Australia’s Extradition Act 1988 will apply. Section 22(3) of that statute says that:
the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(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 deathby 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.
Note that it’s the “country” that must provide the undertaking – after all, it’s the U.S. that has an extradition treaty with Australia, not Alabama. It’s also possible that an extradition objection (referred to in (a) above) could arise under section 7 of the Act, which applies where “a person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.”
Even if deportation, rather than extradition, processes are applied, the Australian government considers that the return of an individual to a country where they risk being subject to the death penalty would go against Australia’s international obligations: “Australia does not deport people if there is a risk that they will be subject to capital punishment,” Australian Immigration Minister Chris Bowen said. He also said: “If it is reasonably foreseeable that there is a real risk that an individual will face the death penalty if returned, Australia will generally require assurances from the receiving country that the death penalty will not be carried out.”
There are many interesting aspects of this case: What are the rules relating to which jurisdiction has the first right to prosecute in cases like this? How is the issue relating to the same conduct being prosecuted in another country to be resolved, and is the approach to this issue different under the laws of Australia and the U.S. (or individual U.S. states)? When is something a state issue and when is it a federal issue? And what happens if there are differences under the federation arrangements of the two countries – how do the diplomatic and legal processes work if that’s the case? How are the processes, laws, and principles different if deportation rather than extradition is used to send someone back to another country? Then there are also the reports that Australian officials asked the husband to sign a document that said he was aware that he could face the death penalty if he voluntarily returned to the U.S., and purported to absolve the Australian government of any responsibility. What would the status of this document be under domestic law or in the context of Australia’s international obligations?
I’m obviously not going to attempt to discuss or answer all of these questions in this blog post, as it would go on for many more pages, but I will certainly keep watching the news to see how it all turns out in the end. Watch this space for updates…