Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Newman v New Zealand

 

[2011] QSC 257

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Newman v New Zealand [2011] QSC 257

PARTIES:

ALLAN REX NEWMAN
(applicant)
v
NEW ZEALAND
(respondent)

FILE NO/S:

5281 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 August 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

2 August 2011

JUDGE:

Martin J

ORDER:

Application dismissed.

CATCHWORDS:

EXTRADITION – BETWEEN AUSTRALIA AND NEW ZEALAND – APPEAL AND REVIEW – where in 2010 the District Court at Manukau in New Zealand issued a warrant for the arrest of the applicant in respect of 14 offences of a sexual nature alleged to have been committed between 1957 and 1975 – where in 2011 Hine DCM made an order under    s 34(1) of the Extradition Act 1988 (Cth)(“the Act”) for the surrender of the applicant – where the applicant seeks a review of the orders made by Hine DCM pursuant to s 35 of the Act – where the applicant alleges that to extradite him would be unjust and oppressive by virtue of the applicant’s age, the age of the complainants, the delay in seeking the warrants after the complaints were made, the fact that a possible witness is dead, the inevitable deterioration of recollections and the unavailability of appropriate health care for the applicant

Extradition Act 1988 (Cth) s 34, s 35

New Zealand v Johnston (2011) 274 ALR 509, considered

New Zealand v Johnston (2010) 272 ALR 379, considered

New Zealand v Moloney (2006) 154 FCR 250, considered

New Zealand v Venkataya (1995) 57 FCR 151, considered

COUNSEL:

J R Hunter SC and M W C Harrison for the applicant

D Kent for the respondent

SOLICITORS:

Blanch Towers Lawyers for the applicant

Commonwealth Director of Public Prosecutions for the respondent

  1. On 17 August 2010 a warrant for the arrest of the applicant in respect of 14 offences of a sexual nature issued from the District Court at Manukau in New Zealand.
  1. On 14 June 2011 Hine DCM made an order under s 34(1) of the Extradition Act 1988 (Cth)(“the Act”) that the applicant be surrendered to New Zealand.
  1. On 17 June 2011 this application was filed, under s 35 of the Act, seeking a review of the order made by Hine DCM.

The charges

  1. It is alleged against the applicant that he committed offences of indecent assault and inducing an indecent act against his daughter (“G”) between 1957 and 1961 when she was aged between 5 and 9 years.
  1. It is further alleged that he committed offences of the same description against his other daughter (“R”) between 1966 and 1975 when she was aged between 10 and 17 years.
  1. G first complained to police in December 2008, some 47 years after the last alleged offence. R complained in February 2009, some 33 years after the last alleged offence.

The Extradition Act 1988

  1. The Act has, as one of its objects, the codification of the law relating to the extradition of persons from Australia to “extradition countries” and New Zealand. Part II of the Act deals with extradition from Australia to “extradition countries”. A separate part of the Act – Part III – deals with extradition to New Zealand. For the purposes of this application the relevant sections are sections 34 and 35. They provide:

“Section 34

Surrender warrants

(1)Where:

(a)either:

(i)a person has been remanded after being arrested under an indorsed New Zealand warrant; or

(ii) a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person; and

(b)a request is made to a magistrate by or on behalf of the person or New Zealand for proceedings to be conducted under this section;

the magistrate shall, unless the magistrate makes an order under subsection (2):

(c)by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand; and

(d) by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison.

(2)If the magistrate is satisfied by the person that, because:

(a)the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;

(b) if that offence is an offence of which the person is accused—the accusation was not made in good faith or in the interests of justice; or

(c) a lengthy period has elapsed since that offence was committed or allegedly committed;

or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released.

(3)The magistrate shall, after making an order in relation to the person under paragraph (1)(c), inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 35.

(4)In the proceedings under this section, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued.

Section 35

Review of magistrate's order

(1)Where a magistrate of a State or Territory makes an order under section 34 in relation to a person:

(a)in the case of an order under paragraph 34(1)(c)—the person; or

(b)in the case of an order under subsection 34(2)—New Zealand;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2)The Court may, by order:

(a) confirm the order of the magistrate; or

(b) quash the order of the magistrate and direct a magistrate to:

(i)in the case of an order under paragraph 34(1)(c)—order the release of the person; or

(ii)in the case of an order under subsection 34(2)—order, by warrant, that the person be surrendered to New Zealand.

(3)The person or New Zealand, whether or not the person or New Zealand was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.

(4)The person or New Zealand is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.

(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.

(6) Where the person or New Zealand:

(a)applies under subsection (1) for a review of an order;

(b) appeals under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d) in the case of an application for review—the court to which the application is made shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate;

(e) in the case of an appeal—the court to which the appeal is made shall have regard only to the material that was before the court that conducted the review;

(f) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released, the court to which the application or appeal is made may order the arrest of the person;

(g)if:

(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or

(ii) the person has been arrested under an order made under paragraph (f);

the court to which the application or appeal is made may:

(iii)order that the person be kept in such custody as the court directs; or

(iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;

until the review has been conducted or the appeal has been heard.”

  1. The review hearing under s 35 is by way of rehearing and a court may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate.
  1. These provisions of the Act have been the subject of detailed examination by a series of decisions of the Full Court of the Federal Court of Australia. A five member Full Court in New Zealand v Moloney[1] examined many of the earlier decisions of the Federal Court and, in particular, the meaning of the word “unjust” in s 34. In Moloney the Full Court explained the statutory scheme in the following way:

The statutory scheme

[25]The provisions of the Extradition Act concerning the requirements for an extradition offence (s 19(1)), speciality              (s 22(3)(d)), double criminality (s 19(2)(c)) and extradition objections (ss 7 and 19(2)(d)) apply only in relation to extradition from Australia to “extradition countries”, under Pt II of the Act. The definition of “extradition country” in s 5 specifically excludes New Zealand.

[26]In relation to extradition from Australia to New Zealand, s 28 provides that application may be made, in the statutory form, on behalf of New Zealand to a magistrate for the indorsement of a New Zealand warrant, ie for the “backing” of the warrant. Where there is urgency, s 29 allows for the issue of a provisional arrest warrant. Sections 30 and 31 provide for powers of search and seizure. In substance, these are in the same terms as those in Pt II of the Act, which deals with extradition to countries other than New Zealand. Section 32 deals with remand and bail.

[27]Since this appeal concerns the meaning to be accorded to s 34(2) of the Act, it is useful to set out s 34 in its entirety [section omitted]

...

[28]It is apparent from Pt III of the Extradition Act that extradition from Australia to New Zealand is a much simpler process than extradition to other foreign states. New Zealand alone is not required to make a formal request for extradition. Nor is it required to produce “supporting documents” of the kind required from foreign states pursuant to s 19(2) and (3). And, unlike the position in relation to some other countries, including the United States, New Zealand is not required to provide prima facie evidence of guilt.

[29]Extradition from Australia to New Zealand is also unique in other respects. As previously stated, none of the various extradition objections set out in s 7 of the Act applies. Thus, in the case of New Zealand, a person whose extradition is sought cannot resist surrender on any of the following grounds:

  • the offence is a “political offence” within the meaning of       s 7(a);
  • extradition is sought for an improper purpose, as set out in     s 7(b);
  • the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of race, religion, nationality or political opinions, as specified in s 7(c);
  • the dual criminality requirement is not met, as specified in     s 7(d); or
  • the person may be exposed to double jeopardy, contrary to     s 7(e).

[30]The only statutory bar to extradition to New Zealand is to be found in s 34(2). If a person wishes to raise any of the matters encompassed within s 7, they must be raised within the context of s 34(2) or not at all.

[31]The onus rests upon the person whose extradition is sought to satisfy the magistrate of the matters set out in s 34(2).

[32]As is the case with extradition to foreign states generally, considerations of guilt or innocence are not in issue, and the hearing before the magistrate is not a trial on the merits of the case. Section 34(4) provides that the magistrate cannot receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence. That prohibition presumably extends to evidence as to the state of mind of the person and not only to evidence as to the acts or omissions allegedly committed: Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472 at 520–521.

[33]As Pt III of the Act is intended to relieve New Zealand of the obligation to show or defend even a prima facie case in the Australian courts it is unclear precisely what practical role s 34(4) is intended to play. It may be that it merely makes explicit what is in any event implicit in the statutory scheme. Subject to one qualification, which is discussed below, an extradition proceeding involving New Zealand does not allow for any consideration of the strength of the case against the person whose surrender is sought.

[34]Our conclusion that s 34(4) is not of itself a critical feature of Pt III of the Act finds support in the authorities. The Service and Execution of Process Act 1901 did not include a comparable provision. A comparable provision was not introduced into the Extradition (Commonwealth Countries) Act 1966 until 1985. Yet in no case of which we are aware has the presence or absence of a provision like s 34(4) been seen as significant.

[35]We conclude this survey of the statutory scheme by noting that there is nothing in the language of s 34(2) that suggests that an Australian magistrate, concerned with the possible application of that section, ought ordinarily to engage in a wide-ranging consideration of the merits, or otherwise, of the New Zealand criminal justice system. The scheme of Pt II of the Extradition Act suggests that the issue of injustice is to be more narrowly focused than this. It also suggests that a finding of injustice would not be made lightly.

The assumption that any trial in New Zealand will be fair

[36]As has been seen, New Zealand has long been equated, for extradition purposes, with the Australian States and Territories. The fact that the backing of warrants, without more, is regarded as sufficient, itself demonstrates confidence in the integrity of the New Zealand criminal justice system.

[37]Even apart from the special arrangements that govern extradition from Australia to New Zealand, the close relationship between our two countries, and the respect and high regard with which New Zealand courts are held in Australia, would support an assumption of fairness. Section 34(2) must be understood in the light of that assumption.”

  1. More recently, in New Zealand v Johnston[2] the Full Court extracted the following propositions from the decision in Moloney with respect to the concepts of “injustice” and “oppression” in the context of extradition law. The Court said:

“[14]At [38]–[128] (pp 259–274) in Moloney, the Full Court considered the concepts of “injustice” and “oppression” in the context of extradition law. For present purposes, the following propositions may be gleaned from those paragraphs:

(a)As a general rule, Australian courts are reluctant to ascribe bad faith to other countries when considering extradition applications (at [57] (p 262)).

(b)The oppression limb of the composite expression “unjust or oppressive” in s 34(2) of the Act has been invoked far more frequently than the injustice limb as a basis for refusing surrender. That is not to say that the concepts are entirely distinct (at [58] (p 262)).

(c)It would be oppressive to order surrender if it is absolutely clear that there is no real chance of a conviction or if it is absolutely clear that the allegations against the accused are wholly misconceived and could not possibly be right eg if the offence with which the accused is charged is not an offence in law or where the accused has been able to demonstrate a complete defence to the charge (at [59] (p 263)). This qualification is the only qualification to the general rule that the courts of the requested State are not concerned with the strength of the case against the accused (at [64] (p 263)). (We note that Kenneally v New Zealand [1999] FCA 1320; (1999) 91 FCR 292 is an example of the rare case where the accused was able to establish that there was no possibility that he would be convicted).

(d)As a matter of construction, each component in the composite expression “unjust, oppressive or too severe a punishment” must be given some separate meaning even if there is a degree of overlap between them (at [65] (p 263)).

(e)In the composite expression “unjust, oppressive or too severe a punishment”, injustice is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself and oppression is directed to the hardship visited upon the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration (at [66]–[73] (pp 263–265)).”

  1. The Full Court in Johnston summarised the effect of s 34 in the following way.

“[19]The effect of s 34 of the Act is that, unless the magistrate makes an order under s 34(2) of the Act, he or she must order that the accused be surrendered to New Zealand. The magistrate can only make a release order under s 34(2) of the Act if the magistrate is satisfied that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand for one or more of the following reasons:

(a)the offence specified in the warrant is of a trivial nature;

(b)if the offence is an offence of which the person is accused, the accusation was not made in good faith or in the interests of justice;

(c)a lengthy period has elapsed since the offence was allegedly committed; or

(d)for any other reason.

[20]The accused bears the onus of satisfying the magistrate of these matters.

[21]A review by a single judge of this Court pursuant to s 35(1) of the Act is a rehearing and the judge is permitted to have regard to evidence in addition to or in substitution for the evidence that was before the magistrate (s 35(6)(d) of the Act).”

The applicant’s case

  1. The applicant was born in 1925 and is now 86 years old. He lives alone in a house at North Lakes and he has mortgaged that house in order that he might fund his legal representation. He has no savings and no source of income apart from the aged pension.
  1. From 1950 to 1978 he lived in New Zealand. He returned to Australia after the death of his first wife and, since that time, has lived in a number of places in Australia. Apart from his daughters, he has no ties to New Zealand and nowhere to live in that country. He has suffered serious illness in the past but it is not suggested that he is too ill to travel.
  1. The applicant alleges that to extradite him to New Zealand would be both unjust and oppressive.
  1. At the hearing of this application Senior Counsel for the applicant said that his case began and ended with the following factors:
  1. The applicant’s age;
  1. The age of the complaints;
  1. The delay in seeking the warrants after the complaints were made;
  1. The fact that a possible witness, the applicant’s first wife, is dead;
  1. The inevitable deterioration of the recollections of both the applicant and other witnesses; and
  1. The unavailability of appropriate health care for the applicant in New Zealand.
  1. It was also argued on behalf of the applicant that the manner in which the proceedings could be undertaken in New Zealand was antipathetical to the conception of a just trial in Australia. New Zealand allows for the making of representative charges, that is, charges that would be regarded as duplex in Australia and would not be permitted to proceed. Most of the charges against the applicant do not fall into that category. Even if it were possible to formulate an order for extradition only on those charges which are not duplex, that would not prevent the prosecuting authorities in New Zealand from charging the applicant in that manner upon his arrival in New Zealand. In any case, the weight that must be given to the assumption that the New Zealand proceedings will be fair is heavy in these circumstances.
  1. The applicant points to the delay between G going to the police in late 2008 and the warrant not issuing until August 2010. The respondent could not explain that delay.
  1. The applicant argues that the delay in both making the complaint and then issuing the warrant causes injustice in that:
  1. He is likely to experience significant difficulty in recalling events that took place so long ago;
  1. Other potential witnesses are likely to experience similar problems;
  1. Other potential witnesses, such as the applicant’s first wife, are dead; and
  1. While the investigating officer asserts that he has located various records that might enable times and places to be better established, there is nothing to say that other relevant documentation still exists.
  1. No particular evidence was called with respect to the state of memory of the applicant. That is not surprising. It is not unreasonable for an applicant to rely on the undeniable experience that, as a person ages, that person’s ability to recollect events diminishes and, as the distance between the events and the necessary recollection occurs, so also does the capacity to recall in detail.
  1. The applicant also says it is oppressive to be required to be surrendered to New Zealand for the following reasons:
  1. His age, and the fact that he has lived in Australia for the last 33 years;
  1. None of the delay can be attributed to him;
  1. Difficulties in recalling events from so long ago are likely to cause more than the ordinary level of distress at having to defend such allegations;
  1. He will be required to remain in New Zealand for an extended period – perhaps in excess of 12 months;
  1. His ability to access appropriate health care will be limited in some way; and
  1. Forced relocation to New Zealand for an extended period will involve dislocating him from the community in which he has lived for six years.
  1. Against what is advanced for the applicant is the well accepted fact that victims of alleged sexual abuse will sometimes, because of the very abuse itself, be unable to make a complaint within a reasonable time. The effect of the assaults on such people is such that many of them feel unable to make a complaint to the police and the experience of the courts is that the inability can last for many, many years.
  1. As was observed by the primary judge in New Zealand v Johnston[3]:

[55] The task of determining whether it would be unjust to surrender a person is not narrowly focused. As Mohr J noted in Perry v Lean (1985) 39 SASR 515 at 530:

The concept of injustice or “unjust” is not confined to the appellant. This concept needs to be considered in the wider concept of justice taken as an entire concept including the general interest of the community as a whole in having persons charged with serious crimes brought to trial.

It is at least implicit in the observations of Sackville J in Venkataya and the Full Court in Bannister quoted earlier that in cases involving the alleged sexual assault of children quite legitimate reasons can explain why a very considerable period may have elapsed between the time the alleged offences took place and the time the alleged perpetrator is charged and, in appropriate cases, exposed to extradition proceedings. Probably also implicit in the observations is that having regard to those legitimate reasons a very long period of delay should not, in the ordinary course, frustrate the extradition and trial of an alleged perpetrator in circumstances where the complaint of sexual assault was first made to police many years after the alleged assaults occurred. To allow such delay to operate to deny the trial of alleged child sexual offenders would offend against wider concepts of justice and the general interest in this and other communities in having such people brought to trial. For my part, this is undoubtedly correct. It is comparatively obvious that this was also the view of the Full Court in New Zealand  v Moloney.”

Is there injustice or oppression?

  1. The major argument for the applicant revolved around the lengthy delay in making the complaints which form the basis for the warrant. I am asked to draw from that delay that there will be an irremediable harm done to the applicant because of the deterioration in memories of the persons who might be called to give evidence.
  1. It is important to bear in mind that this is not, for example, an application to stay an indictment. Any application to the prosecuting authorities or to any court which might hear the trial is still open to be made.
  1. A similar set of circumstances arose in Johnston. In that case the respondent was 69 years old and the complaints were about conduct alleged to have occurred between 32 and 36 years before the issue of the warrant. The Full Court heard an appeal from the primary judge’s decision to release the respondent from custody and not allow him to be surrendered to New Zealand. Their Honours said:

“[116]There is no doubt that “ a lengthy period has elapsed since (the offences) were allegedly committed”. It is now more than 37 years since August 1973 and between 33 and 34 years since early 1976 and mid-1977.

[117]It is also true that most of this delay cannot be laid at the feet of the first respondent. There is no evidence which would enable us to conclude that, once A left the first respondent’s home permanently in late 1977 or 1978, the first respondent should bear some responsibility for the delay which occurred after that time.

274 ALR 509 at 536

[118]In Venkatayaat at 165E–F, Sackville J observed that the determination as to whether an order for surrender would be unjust or oppressive is a question of fact or, at least, a question of mixed fact and law. We agree. At 165G–166C, his Honour said:

“(v)The question under s 34(2) is not whether it was unjust or oppressive for the authorities to charge the accused, but whether, on the particular facts of the case, it would be unjust to remove him or her to that jurisdiction: Perry v Lean, at 519, per Jacobs J. Each set of circumstances must be assessed to determine whether injustice or oppression is present: Perry v Lean at 537, per Olsson J.

(vi)In determining whether there is injustice or oppression to an accused, the gravity of the offence charged is a relevant (and, I would add, very important) consideration: Perry v Lean, at 537; White v Cassidy (1979) 40 FLR 249. The “offence” in this sense refers to the facts and circumstances of the alleged conduct, rather than the theoretical nature of the offence: Edmonds v Andrews, at 421.

(vii)The extent of any delay in instituting a prosecution, the cause of the delay and the consequences flowing from it are relevant and perhaps decisive: Perry v Lean at 537. However, if the delay is not due to the conduct of the alleged offender, the consequences of the delay are more significant than its cause: Edmonds v Andrews at 421–422. Mere delay without evidence that it has caused injustice or oppression, is not enough: White v Cassidy at 253.”

[119]In the present case, the court’s attention should be focused on the consequences of delay and the question whether the delay has caused injustice or oppression.

[120]We think that the primary judge erred when he found (at [54] and [58] of his reasons) that the delay in the present case had resulted in evidence being lost and investigative trails going cold with the consequence that the cross-examination of A would inevitably be severely impaired thereby prejudicing the first respondent’s defence against the charges and rendering his trial unfair. With great respect to his Honour, we consider this conclusion to be no less speculative than the propositions advanced by the first respondent concerning “prejudices” which his Honour rejected for the reason that they were speculative.

[121]As noted at [66] and [85] above, the opinions and views as to A’s propensity to lie which are recorded in the social welfare exhibit are mostly opinions and views of unnamed persons or, if identified, not those of the persons who made the record. Further, the social welfare exhibit does not reveal the basis upon which the views and opinions recorded therein came to be held.

[122]The fundamental problem with the approach taken by the primary judge is that it elevates speculation into fact. Assuming for the moment that the investigations described by the primary judge at [54] of his reasons were something that might have helped the first respondent’s defence, there is no evidence that any of the social workers or any of the teachers and other carers who dealt with A in the mid-1970s are now unavailable. On the assumption that the enquiries postulated by the primary judge might be a useful avenue for the first respondent to pursue, it is a matter of pure speculation as to what attempts to pursue such enquiries made now would unearth.

[123]Cases involving the alleged sexual assault of children very often come to light many years after the assaults allegedly occurred. In such cases, mere delay will hardly ever be a reason for refusing extradition. In the absence of demonstrated actual prejudice, it should be left to the New Zealand courts to determine the effect of delay. In Bannister at [35]–[36], the Full Court said:

[35]As to the question of delay, it is by no means uncommon for prosecutions in connection with multiple sexual offences against children to be launched many years after they were allegedly committed. There is a widely-held perception in the community that victims of such offences are often unwilling to complain, particularly when they are younger, and that the fortitude necessary to do so sometimes comes with age. Delay may still be a bar to such a prosecution, but that is a matter for the prosecuting authority and ultimately, the courts in the relevant trial and appellate structure. We were urged to adopt the view that the passage of 20 years, by itself, should create a prima facie case of prejudice sufficient to render it inappropriate that a prosecution continue, and that in such a case, extradition should be refused. We note that in Clear v Holyoak (above), the Supreme Court of Queensland allowed extradition at the request of New South Wales in connection with charges involving allegations of numerous acts of sexual misconduct against children between 1964 and 1970. The decision on appeal was handed down in June 1991 so that the delay was, by then, between 21 and 27 years. It is a little difficult to conclude that mere delay of the same order, without any demonstrated actual prejudice, should bar extradition to New Zealand in the present case. It seems that if the offence is serious enough, delay, by itself, may not always be a bar to prosecution, although there will often be other relevant considerations.

[36]In any event, the effects of delay are difficult to identify in isolation from the evidence in the case. It will often be better to assess those effects when the full extent of the prosecution case is known. That will usually be after committal proceedings. For present purposes, the relevant question is whether or not it would be unjust or oppressive to surrender the appellant, not whether it would be unjust or oppressive for him to stand his trial. The latter question will not be finally determined by his extradition. The New Zealand courts will still have to consider the consequences of delay and will be in a better position to deal with them than are we at this stage. There is no reason to believe that those courts will be less sensitive to the rights of the appellant in this regard than would the Australian courts.

[124]We agree with those observations. They are equally applicable where the alleged victim complained to the authorities more than three decades ago and resurrected the complaint in 2006, as is the case here.

[125]In R v Edwards (2009) 255 ALR 399 ; [2009] HCA 20 at [31], the High Court said:

[31]The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair [Jago at CLR 34; ALR 583 per Mason CJ, at CLR 47; ALR 594 per Brennan J; Williams v Spautz (1992) 174 CLR 509 at 519 ; 107 ALR 635 at 640 ; [1992] HCA 34 per Mason CJ, Dawson, Toohey and McHugh JJ].

[126]Those observations echo remarks to a similar effect made by Gleeson CJ in the NSW Court of Criminal Appeal in R v Adler (unreported, NSWCCA, Gleeson CJ, 11 June 1992) at 4. His Honour said:

The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial …

[127]Even if the avenues of investigation postulated by the primary judge have now been lost, that state of affairs does not render the surrender of the first respondent to New Zealand unjust. In cases involving sexual misconduct towards children, delays are very common. In all cases, the loss or unavailability of evidence is common. In the present case, the value to the first respondent of the investigations postulated by the primary judge at [54] of his reasons is entirely a matter of speculation. The loss of the capacity to carry out those investigations, if indeed that opportunity has been lost in any event, does not constitute prejudice of such seriousness as to render the first respondent’s trial in New Zealand unfair. The effect of such postulated prejudice is a matter for the New Zealand courts.”

(emphasis added)

  1. The circumstances of this case do not take it out of the reach of the clear statement made by the Full Court at [123] which I intend to apply:

“Cases involving the alleged sexual assault of children very often come to light many years after the assaults allegedly occurred. In such cases, mere delay will hardly ever be a reason for refusing extradition. In the absence of demonstrated actual prejudice, it should be left to the New Zealand courts to determine the effect of delay.”

  1. The other matters which I have highlighted in the extract from Johnston demonstrate the similarity of this case to that considered in Johnston.
  1. I raised with counsel a concern I had about the possibility that the applicant, if extradited, might face a lengthy period on remand. In answer to that New Zealand undertook that any application for bail that might be made would not be opposed.
  1. The applicant has not demonstrated actual prejudice which would help to establish injustice or oppression. He may have a sound case for the charges not being proceeded with, but that is a decision for the New Zealand courts to make.
  1. The issues concerning his accommodation and health care are not, on the evidence, insurmountable. The applicant did not establish that he would not be able to receive appropriate health services in New Zealand.
  1. The application is dismissed.

Footnotes

[1] (2006) 154 FCR 250

[2] New Zealand v Johnston [2011] 274 ALR 509

[3] (2010) 272 ALR 379. 

Close

Editorial Notes

  • Published Case Name:

    Newman v New Zealand

  • Shortened Case Name:

    Newman v New Zealand

  • MNC:

    [2011] QSC 257

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    24 Aug 2011

Litigation History

No Litigation History

Appeal Status

No Status