FEDERAL COURT OF AUSTRALIA
New Zealand v Moloney [2006] FCAFC 143
EXPLANATORY STATEMENT
1. As is the Federal Court’s practice in complex cases and those of particular public interest, the Court has issued an explanatory statement in this case. The statement is intended to assist in a general understanding of its decision and the broad reasons for it, but it is in no way to be taken as a substitute for, or to form any part of, the Court’s published reasons for judgment. The Full Court’s reasons are available at www.fedcourt.gov.au.
2. New Zealand seeks the extradition of the respondents, members of a religious order, who are alleged to have committed sexual offences against young boys between 1971 and 1980.
3. Extradition between Australia and New Zealand follows a simplified process, similar to that between the States and Territories of Australia. There is however an important difference, which is that extradition to New Zealand must be refused and a person released if a magistrate, or on appeal a judge, is satisfied that for reasons that include delay “or for any other reason” it would be “unjust…” to surrender the person to New Zealand. See the outline at [1] to [5] of the Court’s reasons.
4. The respondents claim that it would be “unjust” to surrender them to New Zealand. This claim was rejected by the magistrate before whom their challenge to extradition first came. He ordered that they be taken into custody. They then sought review of the magistrate’s decision by a judge of the Federal Court.
5. The judge accepted their claim that because of the lengthy period that had elapsed since the offences were allegedly committed it would be unjust to surrender them. He therefore set aside the magistrate’s orders and directed that the respondents be released.
6. The judge took particular account of differences between Australian and New Zealand law and especially the requirement of Australian law that on the trial of a person accused of sexual offences long after they were allegedly committed the jury must be given a special warning (known as a Longman warning after the case in which the High Court said it was required). His Honour noted that the High Court of Australia has held that a Longman warning is necessary to ensure a fair trial but that the law of New Zealand does not accept that such a warning must be given in every case. It was primarily for this reason that the judge concluded that it would be “unjust” to surrender the respondents to New Zealand. His Honour considered that their trial in New Zealand might not be fair according to the standard set by the High Court for a comparable trial in Australia. The judge was also concerned about differences in the laws of the two countries concerning trials involving multiple offences said to have been committed against different victims.
7. New Zealand appealed against the primary judge’s decision and argued that an earlier decision of this Court, which the primary judge had followed, should be overruled. Because that decision was made by a Full Court of three judges, a Full Court of five judges was constituted to hear the appeal.
8. The Full Court has unanimously decided that the earlier case should not be overruled. It has also decided, however, that the trial judge did not apply the earlier decision correctly and that his judgment, being based upon an erroneous view, should be set aside.
9. It has concluded that the differences between Australian and New Zealand law do not warrant the conclusion that it would be unjust to return the respondents to New Zealand. Having considered all the factors taken into account by the judge the Full Court has concluded that, despite the long period that has elapsed since the offences for which extradition is sought were allegedly committed, it was not established that it would be unjust to surrender the respondents.
10. In reaching this conclusion the Full Court has noted that the courts in both Australia and New Zealand are sensitive to the difficulties that can confront accused persons in the position of the respondents — and that while the ways in which the difficulties are addressed may differ in some respects, the courts in both countries are under a duty to ensure a fair trial. (See [222] of the reasons for judgment).
11. The Full Court of the Federal Court has therefore ordered that the appeal be allowed and that the magistrate’s order that the respondents be surrendered to New Zealand be confirmed.
12. It must be emphasised that the Full Court has in no way considered the guilt or innocence of the respondents or the strength or otherwise of the case sought to be made against them.
FEDERAL COURT OF AUSTRALIA
New Zealand v Moloney [2006] FCAFC 143
EXTRADITION — eligibility for surrender to New Zealand — whether surrender would be unjust — whether appropriate to consider quality of the trial available in New Zealand — lengthy period elapsed since offences allegedly committed — whether differences in Australian and New Zealand criminal law and procedure justify a finding that surrender would be unjust.
CRIMINAL LAW AND PROCEDURE — directions and warnings — Longman warning — cross-admissibility and similar fact evidence — comparison of Australian and New Zealand practice
Crimes Act 1958 (Vic) ss 372(3AA), 372(3AB), 398A
Criminal Justice and Public Order Act 1994 (UK) s 32
Evidence Act 1977 (Qld) s 132A
Evidence Act 1995 (Cth) s 101
Evidence Act 1995 (NSW) ss 164(3), 165, 165(2), 165(5)
Extradition Act 1988 (Cth) ss 7, 19(1), 19(2), 19(3), 22, 22(3)(d), 28, 34, 34(1)(c), 34(2), 34(4), 35(1), 35(6)(d), 35(6)(f)
Extradition Act 1989 (UK) s 11(3)
Extradition Act 2003 (UK) ss 14, 21, 82
Extradition (Commonwealth Countries) Act 1966 (Cth)ss 27, 27(b)
Fugitive Offenders Act 1881 (UK) s 10
Fugitive Offenders Act 1967 (UK) ss 4, 8(3)
Human Rights Act 1998 (UK)
Indictable Offences Act 1848 (UK)
Indictments Act 1915 (UK)
New Zealand Bill of Rights Act 1990 (NZ) s 25
Service and Execution of Process Act 1901 (Cth)s 18(6)
Service and Execution of Process Act 1992 (Cth)
Anderson v Wilson (1987) 92 FLR 438 referred to
Aston v Irvine (1955) 92 CLR 353 referred to
Atkinson v United States of America Government [1971] AC 197 referred to
Bannister v New Zealand (1999) 86 FCR 417approved
Bates v McDonald (1985) 2 NSWLR 89discussed
Binge v Bennett (1988) 13 NSWLR 578 discussed
Carmady v Hinton (1980) 23 SASR 409referred to
De Jesus v The Queen (1986) 68 ALR 1referred to
Director of Public Prosecutions v P [1991] 2 AC 447referred to
Ex parte Klumper [1967] 1 NSWR 161discussed
Hempel v Attorney-General (Cth) (1987) 77 ALR 641referred to
Hoch v The Queen (1988) 165 CLR 292referred to
Kenneally v New Zealand (1999)91 FCR 292referred to
Longman v The Queen (1989) 168 CLR 79discussed
Narain v Director of Public Prosecutions (1987) 15 FCR 411referred to
New Zealand v Venkataya (1995) 57 FCR 151 referred to
O’Donnell v Heslop [1910] VLR 162referred to
Perry v Lean (1985) 39 SASR 515referred to
Phillips v R (2006) 224 ALR 216 referred to
R v Governor of Brixton Prison; Ex parte Savakar [1910] 2 KB 1056 referred to
R v GPP (2001) 129 A Crim R 1 referred to
R v Holtz [2003] 1 NZLR 667referred to
R v M (unreported, CA187/95, 13 November 1995) discussed
R v Rajakaruna (2004) 8 VR 340 discussed
R v Secretary of State for the Home Department; Ex parte Johnson [1999] QB 1174referred to
R v Tektonopoulos [1999] 2 VR 412discussed
R v TJB [1998] 4 VR 621discussed
Re Henderson [1950] 1 All ER 283referred to
Rider v Champness [1971] VR 239referred to
Silbersher v Gerkens (1984) 13 A Crim R 1referred to
Sutton v The Queen (1984) 152 CLR 528referred to
NEW ZEALAND v RODGER WILLIAM MOLONEY AND RAYMOND JOHN GARCHOW
NSD 867 OF 2006
BLACK CJ, BRANSON, WEINBERG, BENNETT AND LANDER JJ
5 OCTOBER 2006
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 867 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | NEW ZEALAND Appellant
|
| AND: | RODGER WILLIAM MOLONEY First Respondent
RAYMOND JOHN GARCHOW Second Respondent
|
| BLACK CJ, BRANSON, WEINBERG, BENNETT AND LANDER JJ | |
| DATE OF ORDER: | 5 OCTOBER 2006 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders made by the primary judge on 21 April 2006 and 1 May 2006 be set aside.
3. In lieu thereof, orders 2 and 3 of the orders made by Magistrate Dillon on 14 February 2005 be confirmed.
4. The respondents pay the appellant’s costs of and incidental to this appeal and the costs of and incidental to the hearing before the primary judge.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 867 OF 2006 |
| ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | NEW ZEALAND Appellant
|
| AND: | RODGER WILLIAM MOLONEY First Respondent
RAYMOND JOHN GARCHOW Second Respondent
|
| JUDGES: | BLACK CJ, BRANSON, WEINBERG, BENNETT AND LANDER JJ
|
| DATE: | 5 OCTOBER 2006 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
THE COURT
1 New Zealand seeks the extradition of two members of a religious order who are alleged to have committed various sexual offences against young boys between 1971 and 1980. It is accepted that the time that has elapsed since these offences are said to have occurred gives rise to difficulties with respect to any trial that might take place.
2 Part III of the Extradition Act 1988 (Cth) makes specific provision for extradition from Australia to New Zealand. In broad terms, the process is analogous to extradition within Australia whereby all that is required is the production of an indorsed warrant. Section 28 of the Act provides for the indorsement of a New Zealand warrant by an Australian magistrate, thereby authorising the execution of the warrant in Australia by any police officer. New Zealand must merely make an application in appropriate statutory form and produce affidavit evidence that the relevant person is suspected to be in, or on his or her way to, Australia. That is, there is no need for New Zealand to produce any evidence in support of its application. Indeed, there is not even any need to provide “supporting documents” of the type ordinarily required for extradition from Australia.
3 Notwithstanding that the process merely involves the production of an indorsed warrant, s 34(2) of the Extradition Act provides that if a magistrate is satisfied by a person arrested on an indorsed New Zealand warrant that for one of the reasons specified, 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.
4 Following the respondents’ arrest under an indorsed New Zealand warrant, a magistrate of the New South Wales Local Court ordered their surrender to New Zealand under s 34(1)(c) of the Act. In doing so, the magistrate rejected an argument that it would be “unjust” within the meaning of s 34(2) of the Act to surrender the respondents to New Zealand.
5 The respondents then applied to this Court for what the Act terms “review” of the magistrate’s decision. The review, which is to be by way of rehearing, is provided for by s 35(1) of the Act. See also s 35(6)(d).
6 The primary issue in this appeal concerns the meaning, in the context of s 34(2), of the term “unjust”.
The primary judge’s reasoning
7 The primary judge concluded that it would be unjust to surrender the respondents to New Zealand because of the lengthy period that had elapsed since the offences were allegedly committed. In doing so he took into account six factors said to add to the difficulties the respondents faced in defending themselves. These were:
· the charges and alleged facts lack specificity as to time;
· loss of potential witnesses and records;
· the manner of emergence of the complaints;
· New Zealand’s rejection of the directions required by Longman v The Queen (1989) 168 CLR 79;
· no subsequent disentitling contribution to delays by applicants; and
· proposed joint trials and prejudice arising from such.
8 His Honour discussed two other factors which he considered potentially relevant to deciding whether it was unjust to surrender the respondents to New Zealand, but concluded that they were not significant. He then discussed what he described as “Considerations tending against the delays amounting to injustice”. These were:
· seriousness of the charges; and
· respect for New Zealand’s judicial system.
9 His Honour considered one of the six factors said to add to the difficulties the respondents would face in defending themselves, namely “New Zealand’s rejection of the directions required by Longman”, to be particularly important. He found that in Australia, but not New Zealand, accused persons in the position of the respondents would be entitled to what in this country is described as “a Longman warning”. Such a warning, it was held by the High Court in Longman, was required to ensure a fair trial for anyone charged, after a lengthy delay, with sexual offences.
10 It was largely upon that basis that the primary judge concluded that it would be “unjust” to surrender the respondents to New Zealand. His Honour quashed the order of the magistrate requiring the respondents to be surrendered to New Zealand, and ordered their release.
11 His Honour also had regard to the fact that in Australia, but not New Zealand, any trial for sexual offences involving multiple complainants would almost certainly be severed unless the evidence of each complainant was admissible as part of the case in relation to the other complainants. This is usually described as “cross-admissibility”.
12 In approaching the matter in the way that he did, the primary judge paid close attention to Bannister v New Zealand (1999) 86 FCR 417, a judgment of a Full Court of this Court. His Honour found that (at [110]):
“The Longman requirement is, in my opinion, analogous to the rejection by the High Court of ‘representative charges’ in Australia, considered in this Court in Bannister.”
13 In Bannister New Zealand sought the extradition of the respondent to face trial on representative charges. As the High Court had previously found that trial on representative charges gave rise to a risk of a miscarriage of justice, the Court in Bannister concluded that it would be unjust, within the meaning of s 34(2), to surrender the respondent to New Zealand to face trial on such charges.
The appeal to this court
14 New Zealand appeals from the orders of the primary judge: see s 35(3) of the Extradition Act. A central issue in this appeal is whether, as New Zealand contends, Bannister was wrongly decided and should be overruled. In the light of that contention, the Chief Justice arranged for a Full Court of five judges to hear the appeal.
15 Plainly, the meaning to be accorded to the term “unjust” in s 34(2) will be influenced by a number of considerations. These include:
· the detailed nature of the arrangements, including the backing of warrants procedure, and the prohibition upon adducing evidence to contradict an allegation that the person has engaged in conduct constituting an offence, pursuant to s 34(4);
· the statutory scheme in the Extradition Act which makes specific provision for extradition between Australia and New Zealand;
· the underlying assumption in the Extradition Act that any trial in New Zealand will be fair; and
· the history of the special arrangements and, in particular, the retention in relation to extradition to New Zealand of the condition that a person not be surrendered if it would be “unjust, oppressive or too severe a punishment” to do so.
16 Four questions must be answered in this appeal. Is Bannister “plainly wrong”, and should it therefore be overruled? Does the absence of a Longman warning in New Zealand mean that any trial of the respondents in that country would be unfair? Do the different rules in New Zealand governing similar fact evidence and the joinder of multiple counts likewise support a conclusion that a trial in that country would be unfair? Finally, considering the answers to the first three questions, would it be unjust to surrender the respondents to New Zealand?
The backing of warrants procedure
17 Part III of the Extradition Act makes special provision for extradition from Australia to New Zealand. The procedure for indorsement of New Zealand warrants by Australian magistrates under s 28 of the Act is often referred to as a “backing of warrants” procedure, although it is not so described in the Act itself.
18 Professor E P Aughterson, author of Extradition Law and Procedure (1995) suggests (at 236) that the term “backing of warrants” was first used in the Indictable Offences Act 1848 (UK). Section XII of that Act provided for the backing of English warrants in Ireland, and vice versa. Section XIII made similar provision regarding the Isles of Man, Guernsey, Jersey, Alderney and Sark. Sections XIV and XV provided that English or Irish warrants could be backed in Scotland, and vice versa.
19 Part II of the Fugitive Offenders Act 1881 (UK) conferred upon the Crown, for the first time, the power by Order in Council to invoke the backing of warrants procedure in British dominions rather than simply within the United Kingdom. From that time a warrant of arrest issued in one part of the dominions of the Crown could be “backed” or indorsed in another so that the person named therein would be arrested in that other part and, without any hearing, returned for trial to the place from which that person was declared a fugitive. This backing of warrants procedure was applied during the latter part of the nineteenth century, by Order in Council, to the Australian colonies, the West Indies, Hong Kong, South Africa and West Africa.
20 Aughterson (also at 236) observes that backing of warrants came to be incorporated into the Service and Execution of Process Act 1901 (Cth), which of course applied only to interstate extradition. It was later adopted in relation to Commonwealth countries by the Extradition (Commonwealth Countries) Act 1966 (Cth). Both Acts have since been repealed.
21 Aughterson summarises the current position as follows:
“Part III of the Extradition Act provides for a simplified form of extradition to New Zealand, in recognition of Australia’s close relationship with that country. The process is frequently referred to as the “backing of warrants” procedure and is similar to the procedure which existed prior to 1992 for the return of persons from one Australian State or Territory to another. It involves the indorsement by an Australian magistrate of a New Zealand warrant, authorising the execution of the warrant in Australia by an Australian police officer. A formal requisition for surrender is not required and, other than in relation to temporary surrender warrants, the Attorney-General is not involved in the extradition process.” (footnotes omitted)
22 In Bates v McDonald (1985) 2 NSWLR 89, Samuels JA explained backing of warrants in the context of extradition from Australia to New Zealand (at 98) by noting that it:
“… takes account not only of the geographical proximity of Australia and New Zealand and the ease and frequency of travel between these two countries, but also of their close economic and political relationship and, no less importantly, of their common legal and political traditions.”
23 For similar reasons, a special arrangement involving “backing of warrants” also exists between the United Kingdom and the Irish Republic. The United Kingdom regards Ireland as a “special case”. It is not treated as a foreign state, and extradition arrangements between the two countries are governed by broadly similar domestic legislation which provides for the reciprocal indorsement and execution of each other’s arrest warrants. This is justified by the physical proximity of the Republic to the United Kingdom, the ease with which its citizens settle in the United Kingdom, and by what is said to be their shared heritage of history, law and culture. See generally I Stanbrook and C Stanbrook, Extradition Law and Practice (2000, 2nd ed) (at 257).
24 The fact that extradition from Australia to New Zealand is done by a simple backing of warrants is obviously relevant when considering the circumstances under which s 34(2) can be invoked.
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:
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.”
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) 23 FCR 472 at 520-1.
33 As Pt III of the Act is intended to relieve New Zealand of the obligation to show or defend even a prima faciecase 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.
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.
The bar to extradition on grounds of injustice or oppression
38 The only statutory bar to extradition to New Zealand is that set out in s 34(2), prohibiting surrender that would be “unjust, oppressive or too severe a punishment”.
39 Injustice and oppression, as bars to extradition, have a long history in the law of extradition generally and have been incorporated into regulations extending the Extradition Act to other countries. The earliest illustration of this statutory bar appears to be found in s 10 of the Fugitive Offenders Act 1881 (UK), although there were narrower extradition objections available as far back at least as 1802. The 1881 Act, which governed extradition to the dominions of the Crown, conferred wide powers upon a superior court to consider, on review, the general merits of the case. Section 10 of that Act provided that extradition could be refused, in the discretion of the court, if it was satisfied that the case was trivial or that application for the return of the fugitive was not made in good faith in the interests of justice. The section went on to provide that the discretion could also be exercised if, having regard to all of the circumstances of the case, it would be “unjust or oppressive or too severe a punishment to return the fugitive”. This seems to be the first recorded statutory use of this formula.
40 The power conferred by s 10, in relation to extradition to British dominions, was absent from the Extradition Act 1870 (UK) which governed extradition to foreign countries: see generally Atkinson v United States of America Government [1971] AC 197 at 232 per Lord Reid. His Lordship noted, however, that the 1870 Act did provide a safeguard. The Secretary of State always had power to refuse to surrender a fugitive whenever “in his view it would be wrong, unjust or oppressive to surrender the man”.
41 The 1881 Act was repealed and replaced by the Fugitive Offenders Act 1967 (UK). The 1967 Act applied only to Commonwealth countries that were specifically designated, or United Kingdom dependencies, as defined. Section 4 of that Act introduced a series of what were termed “general restrictions on return”. These were essentially the same as the extradition objections currently set out in s 7 of the Extradition Act, to which we referred at [29] of these reasons for judgment.
42 The 1967 Act also incorporated the powers set out in s 10 of the 1881 Act. Section 8(3) conferred upon the High Court the power to order the person committed to be discharged from custody if satisfied, inter alia, that “it would, having regard to all the circumstances, be unjust or oppressive to return him”. The Court was specifically empowered to receive additional evidence relevant to the exercise of this discretion, beyond any evidence that might be admissible under s 4.
43 The power conferred upon the High Court by s 8(3) was later replicated in s 11(3) of the Extradition Act 1989 (UK). That Act applied to foreign countries with which particular arrangements had been made. In effect, the discretion to refuse extradition on the grounds of injustice or oppression, initially conferred by s 10 of the 1881 Act and later incorporated in s 8(3) of the 1967 Act, was finally available in relation to extradition generally, and not merely extradition within the Commonwealth.
44 Curiously, when the Extradition Act 2003 (UK) was enacted it did not confer upon the High Court any such all-encompassing discretionary power. Sections 14 and 82, which deal respectively with “category 1” and “category 2” territories, bar extradition on the grounds of injustice or oppression. However, these provisions are narrower in scope than s 11(3) of the 1989 Act because they can only be invoked where the injustice or oppression is said to have been brought about because of the time that has elapsed since the alleged offence was committed. It is no longer possible, under the 2003 Act, for the High Court to decline extradition on the basis that the offence is trivial, or the accusation was not made in good faith, or more generally on the basis that it would be “unjust or oppressive” to order the return of the fugitive.
45 Notwithstanding the narrower scope of the discretion conferred in relation to injustice or oppression, it seems likely that, in practice, the 2003 Act operates no differently to its predecessor. This is because the Human Rights Act 1998 (UK) affords at least the same protection to a fugitive as would have been available under the unjust or oppressive ground. The Human Rights Act requires courts in the United Kingdom to have regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) when considering any issue in connection with a “Convention right”, as defined in s 1(1). It requires those courts to consider, inter alia, art 6 of the ECHR which enshrines the fundamental principle that everyone is entitled to a fair trial. It also provides guidance as to what is implicit within that concept.
46 In that regard, it should be noted that s 21 of the 2003 Act requires a judge to determine whether the extradition of a person would be compatible with ECHR rights, as defined. If the judge finds that extradition would not be compatible with those rights, the person must be discharged.
47 The European Commission of Human Rights considered the application of art 6 of the ECHR in X & Y v Ireland (1981) 24 Yb ECHR 132. It found, on the facts, that the United Kingdom was not at fault in extraditing the applicants to Ireland to face trial in a Special Criminal Court, without a jury. The Special Criminal Court was held to be independent and impartial within the meaning of art 6. Nonetheless, the case indicates that, in certain circumstances, the fact that a fugitive’s rights under art 6 may be violated in the requesting state can form a basis for refusing extradition.
48 A similar view was taken by the European Court of Human Rights in Soering v United Kingdom [1989] ECHR 14; judgment of 7 July 1989, Series A no. 161, where the Court said (at [113]):
“The right to a fair trial in criminal proceedings … holds a prominent place in a democratic society … . The Court does not exclude that an issue might exceptionally be raised under Article 6 (art. 6) by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.” (emphasis added)
49 It seems that the French Conseil d’Etat has gone even further. In G Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms (1998), the author points out (at 170) that in Galdeano, Ramirez and Beiztegui [1985] Pub Law 328, it was held that extradition will not be granted if the requesting state’s judicial system “does not respect fundamental rights and freedoms”. Gilbert comments that a similar approach has been taken by the Dutch courts and notes, in addition, that Austria and Switzerland include the procedural guarantees of the ECHR in their domestic extradition legislation. The Swiss have also elected to incorporate the guarantees of the International Covenant on Civil and Political Rights.
50 A useful illustration of these principles, and one of some relevance to this appeal, is the decision of the Divisional Court in R v Secretary of State for the Home Department; Ex parte Johnson [1999] QB 1174. In 1992, the applicant was extradited from Austria to the United Kingdom on charges of fraud. In 1994, while criminal proceedings were still on foot, the Australian authorities requested his extradition from the United Kingdom on charges of conspiracy to defraud allegedly committed in Australia between 1988 and 1990. The primary basis upon which the applicant challenged his extradition in Ex parte Johnson was that he would not be able to receive a fair trial in Australia. This was because, according to him, he would not be afforded proper legal representation. The charges against him were highly complex. He had insufficient funds to pay for legal representation and, he claimed, he was unlikely to receive legal aid. He argued that even an application for a stay, under the principles laid down in Dietrich v The Queen (1992) 177 CLR 292, would take a long time to resolve, and would require him to remain incarcerated until the issue was determined. Put simply, he relied upon art 6 of the ECHR as the basis for his application for judicial review.
51 The Divisional Court rejected all of the applicant’s contentions. It concluded (at 1191) that there was nothing to indicate that he would suffer “a flagrant denial of a fair trial in Australia” (emphasis added).
52 In the Australian context, s 34(2) and its legislative precursors were plainly modelled upon s 18(6) of the Service and Execution of Process Act 1901 (Cth). That section in the 1901 Act was itself evidently derived from s 10 of the Fugitive Offenders Act 1881 (UK).
53 Aughterson notes (at 157) that the expression “would be unjust, oppressive or too severe a punishment”, was also to be found in reg 7(1) of the Extradition (Commonwealth Countries) Regulations 1988 (Cth). He observes (at 157) that similar provisions appeared in regulations extending the Extradition Act to certain other countries, including Brazil, Denmark, the Republic of South Africa, Iceland and Japan. He notes, however, that the expression is rarely found in treaties entered into by Australia. Exceptions include the treaties with Finland and Indonesia. He comments, therefore, that, for whatever reason, the statutory bar embodied by the use of terms such as “unjust” or “oppressive” is now largely confined to cases where extradition is sought by other member states of the British Commonwealth. It has limited application to extradition to countries outside the Commonwealth.
54 The “unjust or oppressive” bar to extradition is no longer to be found in the Service and Execution of Process Act 1992 (Cth), which replaced the 1901 Act. However, having regard to the fact that s 18(6) survived for close to a century, and also to the fact that it was predicated upon even older United Kingdom legislation, it is hardly surprising that the notion that it might be “unjust” to surrender a person to another state has generated a substantial body of case law.
55 Some cases dealing with the notion of injustice in the context of the 1901 Act suggest that the burden of relying upon the statutory bar might be greater where the issue involved extradition from one Australian State to another than where the issue was extradition to a foreign country. For example, in Carmady v Hinton (1980) 23 SASR 409, Wells J observed (at 411) that there was, within a Commonwealth, “no talismanic virtue in a State boundary line”. Similar views were expressed by Kirby P in Binge v Bennett (1988) 13 NSWLR 578 (at 584-5).
56 Not all cases approached the matter in this way. For example, there was a line of authority which rejected any limitation upon the statutory bar based upon a notion that an order under s 18(6) would only be made in rare or exceptional cases. See, for example, White v Cassidy (1979) 40 FLR 249 at 250-1; and Edmonds v Andrews (1987) 85 FLR 419 at 421. Obviously, no notion of that kind applies where extradition to a foreign state is in issue, despite some dicta to the contrary. See R v Brixton Prison Governor; Ex parte McCheyne [1951] 1 TLR 1155 at 1158; and Re Gorman [1963] NZLR 17 at 19.
57 As a general rule, courts are reluctant to ascribe bad faith to other countries: Zachariah v Republic of Cypress [1963] AC 634 at 639 and 668-9. On the other hand, Lord Radcliffe observed (at 668) that it was not a relevant consideration that an applicant for surrender happened to be a “friendly power”, or a member of the Commonwealth.
58 It seems from the authorities that the oppression limb of “unjust or oppressive” has been invoked far more frequently than the injustice limb as a basis for refusing surrender. That is not to say that these concepts are entirely distinct.
59 There are cases, decided in the context of the 1901 Act, in which a submission of oppression has been based on the proposition that there is little likelihood of the requesting State ultimately securing a conviction for the offence. The courts have accepted that it would be oppressive to order surrender if there was no real chance of a conviction, or that the allegations against the accused were wholly misconceived or could not possibly be right. See, for example, Ex parte Klumper [1967] 1 NSWR 161 where Sugerman JA spoke (at 165) of exceptional cases in which it was “so demonstrably clear that the matter with which the applicant was charged was not in law an offence”, and (at 163) cases in which the evidence demonstrated a complete defence or was such that a magistrate could not find a case fit for trial. See also Willoughby v Eland (1985) 59 ALR 147 in which the approach taken in Ex parte Klumper was apparently approved.
60 Bates v McDonald is to the same effect. There a surrender order made under the Extradition (Commonwealth Countries) Act 1966 was upheld. The New South Wales Court of Appeal held that under s 27 of that Act (the “unjust, oppressive or too severe” provision) the only issue was whether the accusation against the appellant was “wholly misconceived” or could not “possibly be right”. See Kirby P at 95, Samuels JA at 100 and McHugh JA at 104.
61 Likewise in Narain v Director of Public Prosecutions (1987) 15 FCR 411 a Full Court of the Federal Court reinstated a surrender order under the Extradition (Commonwealth Countries) Act which had been set aside by the primary judge. Wilcox and Jackson JJ (at 424) noted that a court is justified in refusing extradition “where it positively finds that the offence was not committed”. Their Honours referred to the three New South Wales decisions identified above.
62 In Binge v Bennett the New South Wales Court of Appeal set aside an order under the Service and Execution of Process Act 1901 that the appellants be returned to Queensland. The basis of the decision was, as will be seen, the composition of the court that would try them in Queensland, and the conditions that they would experience in custody pending trial and if convicted thereafter. Although the case did not concern the question whether there was a real chance of conviction, or whether the allegations were misconceived, the Court recognised (at 585) that such factors could amount to injustice or oppression.
63 Finally, in Anderson v Wilson (1987) 92 FLR 438 a stay order against the execution of an order of return to Queensland which had been made under the Service and Execution of Process Act 1901 was refused. The Ex parte Klumper test was apparently approved. See generally Samuels JA at 445.
64 These cases, though none involved extradition from Australia to New Zealand, reflect the sole qualification to the rule that courts of the requested state are not concerned with the strength of the case against the accused, to which we previously referred (at [33]).
65 As a matter of construction, it seems clear that each component in the composite expression “unjust, oppressive or too severe a punishment”, must be given some separate meaning. This is so even if there is a degree of overlap between them.
66 In Kakis v Government of Cyprus [1978] 1 WLR 779 the House of Lords considered the relationship between the terms “unjust” and “oppressive” in the context of s 8(3) of the Fugitive Offenders Act 1967 (UK). Lord Diplock said (at 782-3):
““Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.”
67 Section 34(2) is in different form to s 8(3) of the Fugitive Offenders Act 1967 (UK). However, this passage has been cited with approval by Australian courts on many occasions. See, for example, Ingram v Attorney-General (Cth) [1980] 1 NSWLR 190 at 206; Carmady v Hinton at 416-7; Golobic v Radalj (1980) 29 SASR 142 at 148; Bryan v Preston (1982) 44 ALR 217 at 221-2; and Perry v Lean (1985) 39 SASR 515 at 520.
68 In this country, Binge v Bennett is perhaps the leading case dealing with injustice or oppression as the basis for resisting extradition under the Service and Execution of Process Act 1901. There, Mahoney JA (at 596) referred to R v Governor of Brixton Prison; Ex parte Armah [1968] AC 192 as authority for the following proposition:
“The words “unjust and oppressive” given their ordinary meaning have a broad connotation. I do not think that, so understood, they exclude matters going to, for example, the nature and incidents of the justice system to which the person in question is to be returned or to the circumstances or mode of his treatment pending trial in that system. It may well be, for example, that those words, used in the context in which they are used in other countries, would authorise an inquiry by the court as to whether the state of the justice system … to which the person was to be returned were such as to fall within these provisions…” (emphasis added)
69 The authorities dealing with s 18(6) of the 1901 Actsuggest that a broad range of circumstances, apart from the triviality of the alleged offence, lack of good faith and lapse of time, can give rise to injustice or oppression.
70 In Ex parte Klumper, Sugerman JA observed (at 163) that:
“…it would be presumptuous … to try to foresee all the combinations of circumstances which would fall within the category.”
71 Similar views were expressed in O’Donnell v Heslop [1910] VLR 162 (at 169-70 and 175-6) and by Lockhart J in Silbersher v Gerkens (1984) 13 A Crim R 1 (at 7).
72 Aughterson summarises the position regarding the “unjust or oppressive” ground under the 1901 Act in the following terms (at 163-4):
“Matters considered by the courts include the passage of time, the health of the person sought, hardship likely to arise through extradition, the likelihood of conviction, prison conditions in the requesting state, the prospect of a fair trial, the issue of natural justice and the gravity of the offence. Also, this issue overlaps with a number of other exceptions to extradition, including where there has been or will be a violation of procedural safeguards, an abuse of process, trial by a special tribunal, double jeopardy or exposure to severe or unusual punishment.” (emphasis added) (footnotes omitted)
73 The relevance of this historical analysis will be apparent. New Zealand contends that Bannister was wrongly decided. It focuses upon the Full Court’s observation in that case that s 34(2) requires a magistrate to have regard to the “quality of the trial” that the person will receive in New Zealand. If, however, Bannister, properly understood, simply follows a well established line of authority, admittedly in the context of the 1901 Act, that supports a similar approach, New Zealand’s task of persuading this Court that Bannister is “plainly wrong” becomes all that much more difficult. Of course, whether the primary judge actually applied Bannister correctly is a different question.
the meaning of “unjust”
74 On one view, the Service and Execution of Process Act 1901 conferred a wide discretion upon magistrates and justices of the peace to refuse surrender. An alternative view is that the word “may” in s 18(6) was used in the sense discussed in Julius v Bishop of Oxford (1880) 5 App Cas 214 (at 222-3) and Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106 per Windeyer J (at 134-5). That is, to confer an authority to act which must be exercised if the circumstances are such as to call for its exercise.
75 Section 34(2) of the Extradition Act, however,is plainly not discretionary; it is a statutory bar to surrender. Nonetheless, questions of judgment and degree are involved in any determination that it would be “unjust” to follow a particular course. It is impossible to lay down precise rules as to what is, and what is not, within the scope of the term “unjust”.
76 Plainly, it would be unjust to require a person to be surrendered if, by reason of the time that has elapsed since the commission of the alleged offence, a fair trial cannot be had. Presumptive prejudice may be converted into actual prejudice if by reason of delay, important evidence has been lost or destroyed. Kakis provides a useful example of prejudice of this nature.
77 On the other hand, mere lapse of time, without more, may not be sufficient. For example in Perry v Lean the accused was charged with having committed murder more than 20 years earlier. Nonetheless, the South Australian Full Court (Olssen J dissenting) was not persuaded that it would be unjust to require her to be surrendered to Victoria.
79 In Kenneally v New Zealand (1999)91 FCR 292 a Full Court considered many of these cases and held that the “unjust” limb of s 34(2) should be construed in essentially the same way. Kenneally was, however, a most unusual case. For reasons that were never entirely clear, New Zealand, though not obliged to produce any of the evidence upon which it based its charges, elected to present it all. Having opted for that course, it was fixed with the fact that its evidence, taken at its highest, fell short of even a prima facie case. In other words, the charges brought were misconceived and without foundation. It was hardly surprising, therefore, that the Full Court held that it would be “unjust” for the appellant to be surrendered to New Zealand.
80 There are several cases which go further than those referred to above (at [78]). They hold that it can be “unjust” to require a person to be surrendered if there are serious doubts as to whether a fair trial will be possible.
81 In Narain v Director of Public Prosecutions (at 425) a Full Court observed, albeit by way of dictum, that a failure to provide adequate particulars of the alleged offence could lead to a finding that it would be “unjust” or “oppressive” to surrender a person to New Zealand.
82 In Rider v Champness [1971] VR 239, Lush J rejected an application to review a magistrate’s decision ordering the applicant’s extradition to South Australia notwithstanding that no particulars of the charge had been provided. His Honour observed (at 243-4) that it rested with the person before the court to seek particulars. If he did not do so, he could not later complain of injustice in being required to be surrendered. At least by implication, his Honour accepted that a failure to provide adequate particulars, if sought, could give rise to a finding that it would be unjust to order extradition.
83 In Hempel v Attorney-General (Cth) (1987) 77 ALR 641, French J rejected an application for review of a decision by the Attorney-General to sign warrants of extradition in respect of two applicants whose surrender was sought by Israel. In summary, the applicants contended that they would not receive a fair trial in that country for various reasons. These included that the language of litigation in Israel was Hebrew and interpreters were not provided by the courts, that they had no money to engage legal representation, and that they would be discriminated against because they were non-Jews. His Honour did not deal directly with whether it would be “unjust” in such circumstances, assuming they could be established, to require the fugitives to be surrendered. However, he accepted that an inability to obtain a fair trial in the requesting state could justify an order prohibiting surrender.
84 This has long been the position in England. In R v Governor of Brixton Prison; Ex parte Savakar [1910] 2 KB 1056, the Court of Appeal dealt with a contention that a prisoner should not be discharged on the basis that it would be unjust or oppressive to require him to return to India merely because the rules of procedure and evidence in that country differed materially from those that applied in England. Importantly, however, the Court recognised that there might be circumstances where a trial would take place under conditions described in the order nisi for a writ of habeas corpus as “unknown to the laws of England and repugnant thereto”. It accepted that the prospect of such a trial could give rise to the statutory bar then contained in s 10 of the Fugitive Offenders Act 1881.
85 Re Henderson [1950] 1 All ER 283 is to the same effect. There the applicant sought an order for his release under s 10 on the basis that he would not be able to defend himself properly if required to go back to India to stand trial on charges of conspiracy to defraud. He relied upon the fact that there had been considerable delay. He also relied upon the fact that the constitution of the special tribunal that had been set up to try the case (before the applicant was repatriated to England) had changed, and the new members would not see and hear the witnesses for the prosecution themselves, but merely read their evidence. The Court of Appeal held that these were matters for the consideration of the tribunal dealing with the case, and did not form a basis for assuming that the applicant would not obtain a fair trial.
86 It is important to note, however, that Tucker LJ observed (at 287) that the injustice limb of s 10 might be invoked where:
“it appears that the contemplated proceedings, although, perhaps, lawful by the law of the country concerned, are really going to be conducted in a way contrary to natural justice or contrary to our ideas of it.” (emphasis added)
87 The position in the United States is less clear. Professor M Cherif Bassiouni, author of the leading text International Extradition: United States Law and Practice (2002), observes (at 893) that the Secretary of State can exercise an open-ended executive discretion, conferred by Presidential order, based on “technical, humanitarian or political grounds”. He cites Eain v Wilkes, 641 F 2d 504 (7th Cir, 1981) as illustrating how that discretion is exercised in practice.
88 As previously indicated Binge v Bennett is the leading Australian case on whether it would be “unjust” to require a person to be surrendered if there were doubts about the fairness of any trial that might take place. In that case a group of Aboriginal people were alleged to have engaged in riotous behaviour. They claimed that it would be “unjust or oppressive”, within the meaning of s 18(6) of the Service and Execution of Process Act 1901, to surrender them to Queensland.
89 Several bases were put forward for that claim. The evidence suggested that, if committed, they would not get a fair trial before a representative jury in Queensland because of the arrangements of the jury lists, and the regular or invariable practice of those representing the Crown in that State to stand aside from jury service anyone of Aboriginal descent. In addition, seriously prejudicial statements had been made by many people, including a State Minister, asserting the guilt of the accused of the offences charged. Moreover, the provisions of the Bail Act 1980 (Qld) meant that they would be denied bail pending trial and would suffer the burden of prolonged imprisonment in inhumane conditions said to obtain in Queensland gaols. Finally, if convicted they would be incarcerated in similarly appalling conditions.
90 The New South Wales Court of Appeal held that the likelihood that the accused would not receive a fair trial in Queensland was a proper basis for refusing surrender. Kirby P observed (at 584) that s 18(6) had a long history. His Honour noted that the “unjust or oppressive” ground of resistance had been included in the Service and Execution of Process Act from the time it was first enacted in 1901. He added that triviality, lack of good faith, and the “unjust or oppressive” grounds, were “not unknown to private international law as the basis for resisting the extradition of a person from one jurisdiction to another”.
91 His Honour accepted that the appellants bore the burden of establishing that s 18(6) was attracted to the circumstances of their case. He also accepted that the burden was a heavier one within a single federal country, such as Australia. He said that this explained why a most stringent test had been adopted to attract the operation of the section. Kirby P observed that normally the courts of one State should have confidence that any particular elements of injustice or oppression would be considered and dealt with according to law by the courts of the receiving State.
92 Nonetheless, his Honour regarded the situation confronting the Court in Binge v Bennett as different in several important respects from the cases that had gone before. The appellants had tendered a great number of affidavits and other documentary evidence to establish that it would be impossible for them to receive a fair trial in Queensland.
93 Campbell J, the trial judge in Binge v Bennett, had excluded much of the evidence upon which the appellants sought to rely. Kirby P concluded that his Honour had been wrong to do so. As Kirby P pointed out, the very existence of s 18(6) contemplated that there might be cases where, notwithstanding the comity observed between the courts of each State to each other, it might be “unjust or oppressive” to return an accused person to another State.
94 Mahoney JA agreed with Kirby P. After stating that the words “unjust or oppressive” had a broad connotation his Honour went on to observe that it was not possible to say that no circumstances could be conceived “in which the nature of the justice system or the incidents of it” could constitute a case of injustice and oppression within s 18(6).
95 His Honour added (at 596-7):
“I do not mean by this that such a matter may readily be established. What is unjust or oppressive must be judged according to the society in which in Australia we now live. That society and its standards may be open to criticism. It may in some respects, require change. But the context in which these words should be understood is the context of the Australian Federation as it exists from time to time. Taking these matters into account I do not think it is possible to say that, for example, no case could in any circumstances be made out which would fall within s 18(6)(c) of the kind here in question. Thus, for example, it might be able to be established that by the warrant a person was to be returned only to a particular court and that in that court at the particular place and time a fair trial would not be able to be had.
…
If … the trial of the person in question had to take place in a place where a fair trial could not be had, I see no reason why such a case could not fall within s 18(6)(c).”
96 Mahoney JA agreed that the matter should be remitted to the trial judge so that the evidence wrongly rejected could be taken into account.
97 McHugh JA dissented. However, his Honour observed (at 598) that he agreed with the majority that evidence would be admissible in an application under s 18(6) “for the purpose of proving that the appellants cannot obtain a fair trial in Queensland”. He added that the evidence needed to make out such a case would have to be weighty, but that he did not think that it was an answer to the appellants’ contention that their evidence was admissible to say that the judges of Queensland would or should be able to protect them against injustice or oppression.
98 In New Zealand v Venkataya (1995) 57 FCR 151 Sackville J followed Binge v Bennett, and the other cases relied upon by the New South Wales Court of Appeal. His Honour applied the principles set out in those cases to s 34(2) of the Extradition Act.
99 The facts in Venkataya were as follows. In October 1992, complaints were made to the New Zealand police by two former foster children of the first respondent and his first wife. They alleged that a number of serious sexual offences had been committed by the first respondent over a lengthy period between 14 and 20 years earlier.
100 An arrest warrant specifying a number of offences was sought in June 1994. In August 1994 an Australian Federal Police officer obtained indorsement of the warrant and the first respondent, who had by then lived in Australia for many years, was arrested upon it.
101 The magistrate before whom the first respondent was brought ordered his release. He did so on the basis that a number of important records concerning the police investigation that were relevant to the defence had been lost. He also took into account the hardship to the first respondent from the loss of his business if he were forced to return to New Zealand.
102 On review, Sackville J confirmed the magistrate’s order for the first respondent’s release. His Honour observed that the Extradition Act codified the law relating to extradition of persons from Australia, both to “extradition countries” and to New Zealand. He then summarised the key provisions in Pt III dealing with extradition to New Zealand, and set out in some detail the first respondent’s background and circumstances.
103 His Honour noted that the language in s 34(2) was modelled upon s 27 of the Extradition (Commonwealth Countries) Act 1966 (Cth). That language derived from s 18(6) of the 1901 Act, which had governed the extradition of persons from one Australian State or Territory to another until it was repealed in 1992.
104 Sackville J observed that the scheme of Pt III of the 1966 Act had been similar to that of Pt III of the Extradition Act, and that this scheme had been summarised in the joint judgment of Wilcox and Jackson JJ in Narain v Director of Public Prosecutions (at 417). He contrasted the position under the 1901 Act with the new regime created in 1992 whereby although there was power to consider the validity of a warrant and to grant bail, the magistrate had no statutory discretion to refuse to return the person apprehended to the place where the warrant was issued. He observed that although it had been open to Parliament to introduce a similar regime in 1992 for the extradition of accused persons from Australia to New Zealand, it had elected not to do so.
105 Dealing with the construction of s 34(2), Sackville J referred to an extract from the Attorney-General’s second reading speech for the Extradition Bill 1987 (Cth) (at 163-4):
“The Bill contains a special part which governs extradition relations with New Zealand. Our close ties with that country have made appropriate a reciprocal regime which bears a very close similarity to the extradition relations between the various Australian States and Territories contained in the Service and Execution of Process Act1901. Fugitives are moved between Australia and New Zealand by a process based on the backing of warrants by magistrates. The whole process is normally handled by the police in exactly the same way as an interstate extradition would be handled.”
106 His Honour stated (at 164) that this suggested an intention to assimilate the principles governing extradition to New Zealand generally to those then governing extradition within Australia. Under the 1901 Act, it was well established that an accused person resisting interstate extradition bore a considerably heavier burden in seeking to demonstrate “injustice or oppression” than did an accused person resisting extradition to a different country.
107 Sackville J then said (at 164) that trans-Tasman extradition did not necessarily involve exactly the same considerations as interstate extradition (leaving aside the altered regime introduced in 1992). For example, there was no equivalent to the full faith and credit provision in s 118 of the Constitution in force as between Australia and New Zealand. Nor, of course, were New Zealand courts subject to the superintendence of the High Court of Australia. Each of these factors had played a part in the reasoning of Australian courts in construing s 18(6) of the 1901 Act.
108 His Honour then added (at 164-5):
“This is not to deny the special position of New Zealand in relation to the extradition of alleged offenders. Furthermore, it is clearly appropriate that weight should be given to the legislative intent to establish a regime bearing “a very close similarity” to that in force within Australia prior to the Service and Execution of Process Act 1992. The intention reflects a legislative judgment that is based on “the propinquity of New Zealand and the similarities between the laws and legal system of that country and those in Australian jurisdictions” (Narain v DPP, at 419).
Despite the similarities between the two legal systems and the undoubted duty of the New Zealand courts to ensure that an accused person receives a fair trial, s 34(2) of the 1988 Act, in terms, contemplates that the fact that a lengthy period has elapsed since the alleged offence may make it unjust, as well as oppressive, to surrender the accused to New Zealand. It may be that only in an unusual case would the forensic disadvantages to the accused occasioned by the lapse of a “lengthy period” since the alleged offences be significant in determining whether the accused would suffer injustice or oppression in being returned to New Zealand. Nonetheless, the legislation, in my view, contemplates that, depending on the circumstances, this may be the case.”
109 His Honour concluded that, although the case was a difficult one, the very great delay in bringing the charges against the first respondent, and the irremediable prejudice that had been demonstrated by reason of the destruction of important evidence meant that the magistrate’s decision should be confirmed.
110 This leads us to Bannister, the case directly under challenge in this appeal. There, a Full Court (Spender, Kiefel and Dowsett JJ) allowed an appeal from a single judge of the Supreme Court of Queensland who had overturned a decision of a magistrate discharging the appellant under s 34(2).
111 The facts were as follows. In February 1998, the District Court of New Zealand had issued a warrant for the arrest of the appellant on two charges each of rape and indecent assault alleged to have occurred in 1975 and 1976. The operative terms of the warrant were as follows:
“On the 20th day of February 1998 informations were laid that WILLIAM TUHURU DAVID BANNISTER of 104 PT CARTWRIGHT DR BUDDINA 4574 QLD AUSTRALIA … at Auckland on between 01/01/75 and 23/09/75 and between 24/09/75 and 31/03/76
BEING A MALE RAPED A FEMALE (2) CHR 2652
between 01/01/75 and 23/09/75
INDECENT ASSAULT ON A GIRL (2) CHR 2632”
112 Plainly, the warrant did not particularise specific incidents, but rather alleged acts of rape and indecent assault, each between certain dates. It was the practice in New Zealand to bring what were known as “representative” or “specimen” charges. Indeed, the submissions filed on behalf of New Zealand in Bannister described the charges as being of “a representative nature” and asserted that they related to a course of conduct that took place in Auckland between 1975 and 1976.
113 Understandably, that submission evoked concern on the part of the Full Court. After taking instructions, counsel for New Zealand referred to the decision of the New Zealand Court of Appeal in R v Accused [1993] 1 NZLR 385. There, Cooke P outlined and affirmed what he described as “the practice of specimen or sample counts”.
114 The difficulty, so far as the Full Court was concerned, was that the High Court had made it plain in S v The Queen (1989) 168 CLR 266 that the practice of using representative or specimen counts (which incidentally existed in England, as well as New Zealand) was unacceptable. Indeed, Dawson J, who delivered the leading judgment, described the practice (at 276) as “clearly objectionable”.
115 It is necessary to say something about the decision in S. There an indictment charged a father with three counts of carnal knowledge of his daughter. Each count charged one act of carnal knowledge on a date unknown within a specified period of 12 months, namely 1 January 1980 to 31 December 1980, 1 January 1981 to 31 December 1981, and 8 November 1981 to 8 November 1982. The trial judge rejected an application on behalf of the accused for an adjournment pending the supply of particulars. He also rejected a further application that the prosecutor nominate or identify the acts the subject of the counts. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. She also gave evidence of numerous further acts of intercourse over a period of two years until she left home in November 1982. She could not remember the details or frequency of the acts, other than that they had occurred “every couple of months for a year”. The accused was convicted on each count.
116 Dawson J noted that notwithstanding that each count charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count. The trial judge simply left it to the jury to determine whether the accused had had carnal knowledge of his daughter “on the three occasions cited in the indictment”.
117 Dawson J had no difficulty in concluding that the indictment was bad for “latent ambiguity”. In arriving at that conclusion, his Honour simply applied the well-known reasoning of Dixon J in Johnson v Miller (1937) 59 CLR 467 (at 486). Dawson J added that there was obvious embarrassment to the accused in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged. The occasions upon which the offences alleged took place were unidentified, and the accused was, in effect, reduced to a general denial in pleading his defence. He was precluded from pleading more specific, and, therefore, more effective defences, such as alibi.
118 His Honour added that the trial had proceeded in a manner that made it impossible to deal with the admissibility of similar fact evidence. More fundamentally, the case having proceeded as it did, it was possible that individual jurors identified different occasions as constituting the relevant offences. This would mean that there would be no unanimity in relation to their verdicts. It was also possible that the jury had reached their verdicts without identifying any particular occasions. In his Honour’s view, such a result was tantamount to their having convicted the accused, not in relation to identifiable offences, but only on the basis of a general disposition on his part to commit offences of the kind charged.
119 Toohey J, and Gaudron and McHugh JJ delivered separate concurring judgments. Brennan J dissented.
120 In KBT v The Queen (1997) 191 CLR 417 the High Court affirmed the reasoning in S. There the issue was once again the use of multiple unparticularised counts of offences of a sexual nature. The majority (this time including Brennan CJ) said (at 424):
“Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open.” (footnote omitted)
121 In R v Accused (decided after S, but before KBT) the New Zealand Court of Appeal considered and expressly rejected the reasoning of the High Court in S. It preferred to follow the approach taken in England, which held that the use of specimen counts was acceptable.
122 The Full Court in Bannister was critical of the decision in R v Accused. It observed that the Court of Appeal had given virtually no consideration to the concerns expressed by the majority in S, and had simply accepted the dissenting views of Brennan J (which were apparently consistent with longstanding New Zealand practice).
123 The Full Court said in Bannister (at 429-30):
“That the incidents of the system to which the alleged offender is to be extradited are relevant considerations for present purposes also appears from the decision of the Full Court of the Supreme Court of Queensland in Clear v Holyoak [1993] 1 Qd R 376. Derrington J said of the analogous provisions of the Service and Execution of Process Act (at 379):
“Because of comity between the States it is accepted as a general proposition that injustice or oppression will be remedied by the State to which the person is to be returned … and, the onus being upon that person to show injustice or oppression, a stringent test is adopted where the system of another State is questioned … But where it is seen that the product of the State’s system will in fact lead to an unjust or oppressive result to the person who is returned to it, then the refinements of these considerations must give way to the clear prescription of the statute.”
In Perry v Lean (1985) 39 SASR 515 the Full Court of the Supreme Court of South Australia considered those same provisions. Jacobs J said of s 18(6) which is of similar effect to s 34(2) of the Act (at 519):
“… the reported cases in which that section has been successfully invoked recognise that the question arising under that section, namely whether ‘extradition’ is unjust or oppressive, is not to be answered by deciding whether it is unjust or oppressive to charge the defendant. The question is whether it would, on the particular facts of the case, be unjust or oppressive to remove the accused into the jurisdiction of the court in which the charge has been preferred.”
His Honour (at 521) quoted with apparent approval the following extract from the judgment of Tucker LJ in Re Henderson [1950] 1 All ER 283:
“These are all matters which can – and, no doubt, will – be considered by the tribunal of any civilized country which is dealing with a criminal matter. The length of time that has elapsed will, no doubt, be a relevant consideration for this tribunal to consider in weighing the evidence, but there is nothing in the material evidence which would, in my view, show that it is impossible for the applicant to obtain justice. … I think that the kind of matters with regard to which this Court would act would be where it appears that the contemplated proceedings, although, perhaps, lawful by the law of the country concerned, are really going to be conducted in a way contrary to natural justice or contrary to our ideas of it.”
At that page, Jacobs J continued:
“No two cases are alike, and what the court is required to do is to weigh the whole of the circumstances in order to determine not merely whether there is injustice or oppression, but whether it would be on balance injust and oppressive ‘to return the person’, for that is the critical, and indeed the only, issue.”
Mohr J appears to have taken a similar view.
We conclude that it is appropriate, in considering whether, “for any other reason” it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive. Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar. This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels. We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point, the two systems have diverged. In considering the present application, we can only apply the decision of our own ultimate appellate court.
We do not consider that every minor difference in procedure would justify our declining extradition. Such a step will only be justified if the procedure likely to be followed in the country to which extradition is sought will render it unjust or oppressive to surrender the alleged offender. In the present case, injustice or oppression must be measured by considering the High Court’s view concerning the practice which will be followed in New Zealand, which view is that it is most unlikely to result in a fair trial. The High Court has recognised that some aspects of the potential unfairness may be avoided by appropriate directions to the jury but clearly, not all of the problems can be met in this way. For example, there is nothing in R v Accused suggesting how a New Zealand court will ensure that all members of the jury base conviction on any count upon substantially the same alleged conduct. This is not merely a theoretical problem, but a real danger in the view of the High Court. In R v Accused, the New Zealand Court expressly approved the direction given by the trial judge in S. The High Court clearly considered it to be inadequate. Thus we conclude that proceedings in New Zealand would probably take the form expressly disapproved in S.” (emphasis added)
124 New Zealand challenged the correctness of this reasoning. It submitted that, whatever may have been the position under the Service and Execution of Process Act 1901, or the Fugitive Offenders Act 1881, the statutory bar in s 34(2) of the Extradition Act did not entitle an Australian court to have regard to the “incidents of the system” and the “quality of the trial” in New Zealand.
125 Bannister was a very unusual case. The Full Court was evidently influenced by the strength of the High Court’s criticisms, in both S and KBT, of the use of representative or specimen charges.
126 In Kenneally, the Full Court traced the history of s 34(2) as far back as 1985 when s 27(b) was introduced into the Extradition (Commonwealth Countries) Act 1966. The Full Court said (at [46]-[47]):
“It seems to us to be clear enough that the 1985 amendment, which has been carried forward into the present Act, was intended to bring New Zealand extradition into line with interstate extradition, as it stood in 1985. The amendment to the Act was designed to widen the scope for a refusal to extradite by removing the limitation which existed arising from the need to establish one of the matters set out in s 27(a), (b) or (c) of the 1966 Act as a condition precedent to release, and by providing for a more general basis upon which extradition could be challenged. An example of this wider approach to the basis for refusal of extradition is to be seen in Bannister v New Zealand (1999) 86 FCR 417, a decision of the Full Court in which it was held to be unjust and oppressive to return the appellant to New Zealand in circumstances where his trial in that country would be conducted in a manner which had been disapproved of by the High Court of Australia as objectionable.
The introduction into the Act of the expression “for any reason, it would be unjust, oppressive or too severe a punishment” seems to us to make directly applicable to the present section a long line of authority dealing with discretion pursuant to the Service and Execution of Process Act. It also avoids the necessity to construe s 34(2)(b) in such a way as to cover the situation where there is a hopeless case, but no evidence of any collateral purpose or lack of bona fides.”
127 The Full Court in Kenneally regarded Bannister as simply the latest in a long line of cases in which it was recognised that extradition could be refused if it would be unjust or oppressive to require the surrender of the accused.
128 The correctness of Kenneally was not challenged before us. That is hardly surprising since Kenneally simply applied the reasoning of the High Court in Aston v Irvine. The significance of Kenneally is that the Full Court regarded Bannister as having been correctly decided. That makes New Zealand’s task, in challenging Bannister, all the more difficult.
Is Bannister “plainly wrong”?
129 The primary judge held that it would be “unjust” or “oppressive” to require the respondents to be returned to New Zealand. In arriving at that conclusion, his Honour gave careful consideration to Bannister, and particularly the observation in the judgment of the Full Court that a court was entitled under s 34(2) to have regard to the “quality of the trial” which a person was likely to face in New Zealand upon their return.
130 His Honour regarded Bannister as requiring him to approach the application of s 34(2) by comparing certain key features of the New Zealand criminal justice system with their Australian counterparts. He noted that there were two relevant differences between those systems. The first related to whether a Longman warning would be given to a jury in New Zealand in circumstances where the respondents were charged with offences alleged to have been committed many years earlier. The second related to whether a New Zealand court would allow a trial to proceed in circumstances where there were multiple complainants, but where their evidence might not be admissible under the rules governing similar fact evidence.
131 His Honour concluded that the absence of a requirement in New Zealand to give a Longman warning meant that any trial of the respondents would be likely to be unfair. To a lesser degree, the same could be said of the approach taken by the New Zealand courts to the trial of sexual offences involving multiple complainants.
132 As we have noted, New Zealand contends that Bannister was wrongly decided. It submits that s 34(2) does not entitle a magistrate or judge in Australia to have regard to the “quality of the trial” which a person is likely to face on his or her return to New Zealand.
133 It is well established that a Full Court of this Court can depart from an earlier decision of another Full Court. Otherwise, error would simply be perpetuated. This, however, will only be done sparingly and with great care. Decisions of a Full Court are entitled to due respect, and will not be departed from lightly. See generally Transurban Citylink v Allan (1999) 95 FCR 553 at 560.
134 The principles upon which a Full Court will decline to follow the decision of an earlier Full Court are clearly set out in Telstra Corporation Limited v Treloar (2001) 102 FCR 595 (at [28]). There the Full Court said, in the context of a challenge to a decision of an earlier Full Court regarding a matter of statutory construction, that:
“… unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand”.
135 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Moore J observed (at [8]) that the level of conviction required before a Full Court would depart from a decision of an earlier Full Court had been variously described as “being satisfied that the earlier judgment is plainly wrong, manifestly wrong or clearly erroneous”.
136 Weinberg J said (at [146]) that a Full Court will follow a decision of an earlier Full Court unless satisfied that the earlier decision was “plainly wrong”, the same test that applied in relation to decisions of other intermediate appellate courts on questions of interpretation involving uniform national legislation: Australian Securities Commission v Marlborough Goldmines Limited (1993) 177 CLR 485 at 492. His Honour added (at [148]) that the word “plainly” did more than simply add emphasis. It suggested that the error must be manifest or, if it does not rise to that level, must at least be capable of being easily demonstrated.
137 Allsop J (at [187]) referred to Chamberlain v The Queen (1983) 72 FLR 1 (at 8-9) where Bowen CJ and Forster J said in a joint judgment that the Full Court would normally follow an earlier decision of another Full Court “unless convinced that it is wrong”. His Honour added (at [190]) that if the question is simply one upon which minds may differ, both views being open, the earlier decision will be followed. See also Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 20; and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 at [54].
138 We are not persuaded that Bannister is “plainly wrong”. The reference by the Full Court to the need to have regard to “the quality of the trial” that the person would be likely to receive, which formed the focus of New Zealand’s challenge in this appeal, must be understood in context. Bannister was not dealing with a question of admissibility, or a technical rule of criminal procedure. It was concerned with a more fundamental matter, namely the right to have guilt or innocence determined by a jury that was agreed upon its verdict. In that sense, Bannister was an extreme case, in which the Full Court approached the relevant issue in an entirely orthodox manner.
139 Bannister is consistent with well established authority. It accords squarely with the reasoning in Binge v Bennett. It also follows a well-worn path in England regarding the interpretation of a cognate expression in s 10 of the Fugitive Offenders Act 1881 (UK), and later reincarnations of that section. The approach that it takes conforms to general principles of extradition law, as applied in a number of European countries. Accordingly, we reject New Zealand’s contention that Bannister should be overruled.
The Longman warning
140 In applying the principles in Bannister, the primary judge noted that neither New Zealand nor Australia has any statute of limitations for criminal offences. (His Honour was obviously referring here, and relevantly, to indictable offences). He added that it was equally axiomatic in both countries that no one should be subjected to an unfair trial.
141 The primary judge recognised that a particularly difficult situation arises where the sexual abuse of children is alleged. Such allegations are now more frequently made and are often the subject of prosecutions.
142 In both Australia and New Zealand it has been recognised that a great lapse of time between the alleged offence and the trial may result in prejudice to the accused, in some cases to the point where there cannot be a fair trial. In such cases courts in both countries have, where appropriate, granted permanent stays.
143 However, a permanent stay may not be the only way to avoid an unfair trial. As his Honour observed, one concomitant of accusations by people well into their adulthood of their having been sexually assaulted in childhood is that they can give few concrete details of the time and place of the events alleged which might enable the accusations to be tested. In Australia, the difficulties faced by accused persons in meeting allegations of this type are often addressed by a Longman warning.
“To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.
Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.”
145 The primary judge noted that in Crampton v The Queen (2000) 206 CLR 161 the High Court specifically approved these observations. In his Honour’s view, they therefore represented an authoritative statement of the law.
146 His Honour observed that in the present case the delay in bringing charges had been extremely lengthy. In relation to some complainants, the events described were said to have taken place more than 30 years ago. His Honour said that meant that there would be “presumptive difficulties” in defending any such allegations.
147 His Honour accepted that he knew nothing of the strength of the intended prosecution case in relation to any of the proposed charges. He understood that, because of the provisions of the Extradition Act, he had to decide the case without paying any regard to that factor. New Zealand, as it was entitled, did not produce any evidence in support of its allegations. Section 34(4) precluded the respondents from challenging the allegations against them. Nonetheless, it was common ground, and clear in any event, that certain known potential witnesses had died or would otherwise be unavailable. In addition, relevant records no longer existed.
148 The primary judge went further and commented upon the manner in which the complaints had emerged. He said that there had been an orchestrated campaign, albeit waged in good faith, to have complainants come forward in an atmosphere that suggested that significant amounts of money might be available to them. He observed that there was ample opportunity for “cross-fertilisation” of the complainants’ statements. In addition, he was critical of the manner in which the process of identification had been carried out, not by the police, but by leading members of the religious order who had initiated the investigation.
149 His Honour then turned to what he described as an important matter. Under Australian law, quite specific safeguards were required in trials of old allegations of this type. In such cases, it is mandatory that a trial judge warn the jury in the strongest terms, and not merely make comment, about an accused person’s “loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay”.
150 His Honour observed that the need for such a warning had been determined in Longman. He referred to what was said by Brennan, Dawson and Toohey JJ (at 91):
“After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of NSW.) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”
151 His Honour recognised that McHugh J would have required still more, and referred to parts of the passage previously cited at [144] of these reasons for judgment.
152 The primary judge then turned to Crampton where, in a joint judgment, Gaudron, Gummow and Callinan JJ said (at [45]):
“The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. … An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefore) and the possibility of distortion.” (emphasis added)
153 In a similar vein, Kirby J said in Crampton (at [132]):
“The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. That idea is contrary to the repeated authority of this court in and since Longman. The jury need the assistance of the trial judge to warn, from the law’s long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time — especially great time — may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.” (emphasis added) (footnotes omitted)
154 The primary judge thus concluded (at [107] of his reasons) that under Australian law there is a guarantee that, if a trial involving old allegations of alleged childhood sexual assault is not stayed, the difficulties faced by an accused in meeting such allegations will be mitigated by a “‘firm and unmistakable warning’ to the jury carrying the weight of the trial judge’s authority”. His Honour added that in Australia the Longman warning is viewed as necessary to ensure a fair trial. He said that it represents a non-negotiable requirement that the jury be warned of something crucial that they are not likely sufficiently to appreciate or properly to consider without that warning being given.
155 His Honour also noted that in Doggett v The Queen (2001) 208 CLR 343, the High Court held that a Longman warning must be given even where a complainant’s evidence is amply corroborated, the prosecution’s case is perceived as being strong, and experienced counsel makes no request for such a warning at trial. He said that the requirement for a Longman warning was not something that any Australian judge or magistrate was entitled to view as other than a vital requirement for a just trial in any case involving long delay. He regarded the warning (at [110]) as “analogous to the rejection by the High Court of ‘representative charges’ in Australia, considered in this Court in Bannister”.
156 The primary judge expressed his concern that Bannister might not have been correctly decided and might need to be reconsidered. Bannister was of course binding upon his Honour, as he recognised. Having, however, examined the authorities concerning s 34(2) and the earlier and analogous provisions of the 1901 Act relating to interstate extradition he concluded that Bannister was correctly decided. The critical issue for his Honour was, however, the application of Bannister to the facts of the instant case.
157 His Honour contrasted the position in New Zealand, where there was no requirement that a Longman warning be given. He referred to R v M (unreported, CA187/95, 13 November 1995) a decision of the Court of Appeal of New Zealand, which he described as demonstrating that the courts of New Zealand had “set their face against following Longman”. Whether or not that truly represents the effect of R v M is a matter to which we shall return.
Does the lack of a Longman warning in New Zealand mean that any trial will necessarily be unfair?
158 New Zealand is not alone in not requiring a Longman warning in cases involving lengthy delay. It appears that England has gone one step further. Professor Colin Tapper, in Cross & Tapper on Evidence (1999, 9th ed) (at 235-6), points out that s 32 of the Criminal Justice and Public Order Act 1994 (UK), which followed the recommendations of the English Law Commission, effectively abolished the need for corroboration warnings in criminal cases generally. A similar approach was taken in Scotland where courts are discouraged from engaging in what is seen as a technical and time-consuming exercise which simply makes the task of the jury unnecessarily complex.
159 As Professor Tapper points out, in England the key to any warnings that might be given is flexibility. Essentially, the rigidity of the old rules governing corroboration has been replaced by what he describes as “common sense”. Some situations will call for a warning, but only as a matter of discretion. There is no longer anything formulaic about the process.
160 In R v Makanjuola [1995] 2 Cr App R 469 Lord Taylor CJ deprecated any attempt to reimpose the “straitjacket” of the old common law rules by seeking to reintroduce, in the guise of “discretion”, the duty to give such warnings. In his Lordship’s terms (at 472):
“Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence, the circumstances of the case and the issues raised.”
161 The position in New Zealand seems to lie somewhere between the very flexible approach now taken in England, and the more structured approach still followed in Australia. In R v M Gault J, who delivered the primary judgment,observed that in Australia the Longman warning had been treated as laying down “an invariable requirement”. His Honour said that while any failure to give such a warning was regarded in Australia as leading inevitably to a new trial, the practice in New Zealand had been, rather, to deal with the prejudicial effect of delay in the context of applications to stay prosecutions as abuses of process. The primary consideration on such applications had been whether, in light of the passage of time, the accused would receive a fair trial. Likewise, it had been consistently held that if it should appear on appeal from a conviction that delay had deprived the accused of a fair trial the verdict would not be allowed to stand. He referred in that regard to s 25(1)(a) and (f) of the New Zealand Bill of Rights Act 1990 (NZ).
162 Importantly Gault J stated (at 6):
“Even where it is determined that there should be no stay of the prosecution, there still remains the right of every accused not to be tried unfairly. The whole system of our criminal procedure has been developed against that objective. Within the established legislative and procedural rules trial Judges are required so to conduct the proceedings as to ensure the accused is not tried unfairly.” (emphasis added)
163 After referring to the (then recent) legislative provisions in New Zealand dealing with corroboration and delay in making complaint in sexual offence cases, Gault J went on to say (at 7):
“… to accept the submission … that the Longman decision is to be interpreted as requiring the direction in all cases without consideration of the particular circumstances and to require the same in this country would be to move against the trend evident in the statutory provisions and the view consistently expressed by this Court that the summing-up is to be tailored to the particular case.”
164 His Honour added (at 8):
“Of course it is well recognised that prejudice to an accused can arise from the very fact of the passage of time since the alleged offending. In a case where it is considered that the period is not such that, in the circumstances, the prosecution should be stayed it will be necessary for the Judge to be vigilant to ensure that the difficulties are properly brought to the attention of the jury to be borne in mind in the assessment of the evidence. That should be done in the manner appropriate to the circumstances of the case. No particular form of words can have general application. On appeal the enquiry will be whether, in the circumstances, the trial was unfair such that there has been a miscarriage of justice.” (emphasis added)
165 It is clear that R v M determined that the Longman warning, which the High Court has said must be given in Australia, need not necessarily be given in New Zealand. At the same time, the Court of Appeal made it plain that a trial judge is nonetheless required to give a warning that is appropriate to the circumstances of the case. It is important to appreciate that the Court of Appeal said nothing to discourage the giving of a Longman warning if the particular circumstances of the case warranted it.
Proposed trial involving multiple complainants
166 The primary judge next turned to the difficulties that the respondents would face if either of them were tried before a single jury in a case with multiple complainants. His Honour concluded that, under Australian law, no such trial would be permitted unless the evidence of each complainant was “cross-admissible” in relation to the others.
167 His Honour then concluded that none of the acts alleged against either respondent fell outside what were “regrettably, commonplace and unremarkable ways in which male children are sexually abused”. However, his Honour went further. He suggested that even if that barrier to cross-admissibility were overcome, an Australian court, applying High Court authority, would be likely to reject the evidence if there was “a real prospect of concoction” or of “unconscious contamination”. The “Australian standard” concerning these matters should, his Honour considered, be regarded as set by the Evidence Act 1995 (Cth), although he noted that both Victoria and Queensland had legislated in this area, and that each had adopted its own, and different, approaches.
168 The primary judge referred to s 101 of the Evidence Act, which provides that tendency or coincidence evidence about a defendant that is adduced by the prosecution cannot be used unless its probative value substantially outweighs any prejudicial effect it may have. He regarded this section as largely reflecting the reasoning in Pfennig v The Queen (1995) 182 CLR 461 where the High Court held that evidence could not be led if there was a serious possibility of concoction or unconscious contamination. His Honour referred to the dissenting judgment of McHugh J in Pfennig where, having identified the dangers of propensity reasoning, McHugh J posited that in a case dependant entirely on such reasoning, similar fact evidence could only be admitted where there was no rational explanation of the prosecution case consistent with the innocence of the accused.
169 The primary judge considered that the position in New Zealand was significantly different. There the test to be applied in relation to the admissibility of similar fact evidence was whether the probative value of that evidence outweighed any prejudicial effect: R v Holtz [2003] 1 NZLR 667 at 675.
170 His Honour did not regard the fact that New Zealand had a less stringent test for the admissibility of similar fact evidence as, of itself, sufficient to attract the Bannister principle. He expressed concern about the implications that this might have in a trial involving multiple complainants. He said that in Australia, a separate trial would almost certainly be ordered in relation to each complainant if the evidence of one was not admissible when considering the evidence of others, the reason being that a trial involving multiple complainants would inevitably be highly prejudicial.
171 According to the primary judge the position in New Zealand was less clear. His Honour accepted that the apparent possibility that there might be a trial in New Zealand involving multiple complainants would not of itself be sufficient to demonstrate that it would be “unjust” to surrender the respondents. However, he concluded (at [123]) that this was “a circumstance exacerbating the disabilities inherent in the applicants having to defend themselves so long after the alleged events”.
Pfennig and cross-admissibility
172 The circumstances under which charges for more than one indictable offence may be joined in the same indictment are provided for in Australia in legislation based upon the Indictments Act 1915 (UK). The provisions of that Act are still current in England: see generally Archbold Criminal Pleading Evidence & Practice 2006 at §1-154 to §1-177.
173 In Victoria the rules are contained in the Sixth Schedule to the Crimes Act 1958. Rule 2 permits charges for any offences to be joined in the same indictment if they are founded on the same facts or form a series of offences, or part of a series of offences, of the same or a similar character. The historical background to these rules is set out in the judgment of Dawson J in De Jesus v The Queen (1986) 68 ALR 1. See also M Weinberg, “Multiple Counts and Similar Fact Evidence” in E Campbell and L Waller (eds), Well and Truly Tried (1982) at 250-70.
174 With a rule as to joinder of counts as broadly formulated as this, a trial judge must be enabled to order separate trials in appropriate cases. In England that power is conferred by s 5(3) of the Indictments Act. There are similar provisions in all Australian States.
175 Nonetheless, in recent years some States have legislated to modify the nature of the discretion to grant separate trials. For example, the Crimes (Amendment) Act 1997 (Vic) amended s 372 of the Crimes Act 1958 (Vic) by inserting subss (3AA) and (3AB), which provide as follows:
(3AA)
“Despite sub-section (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.”
(3AB)
“The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.”
176 In R v TJB [1998] 4 VR 621 Callaway JA observed (at 626) that the effect of these amendments was to establish a prima facie rule governing the exercise of the discretion. His Honour explained that they were introduced to overcome what the Victorian Parliament regarded as a series of unsatisfactory decisions by the High Court. Those decisions (Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen; and Hoch v The Queen (1988) 165 CLR 292) gave rise to a rule of practice in Australia, and not just in Victoria, that allegations of sexual offences committed against different victims should be separately tried if the evidence in relation to one complainant was not admissible in relation to the others.
177 Callaway JA noted that the explanatory memorandum dealing with these amendments said, in terms, that they were intended to “overrule” De Jesus v The Queen and his Honour observed that the House of Lords in R v Christou [1997] AC 117 had reviewed Sutton, De Jesus, and Hoch and had rejected their application in England.
178 He then turned to s 398A of the Crimes Act which had been inserted at the same time as the new s 372(3AA) and (3AB). Section 398A relevantly provides:
“…
(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).
(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.
(5) This section has effect despite any rule of law to the contrary.”
179 In R v Best [1998] 4 VR 603, delivered on the same day as R v TJB, Callaway JA (who again wrote the leading judgment) noted that s 398A adopted the test of admissibility of propensity evidence laid down by the House of Lords in Director of Public Prosecutions v P [1991] 2 AC 447 and R v H [1995] 2 AC 596, in preference to that enunciated by the High Court in Pfennig. The explanatory memorandum again spoke of s 398A “overruling” the common law principle laid down in Pfennig.
180 Callaway JA concluded that the possibility, even a strong possibility, of collusion or any other matter affecting the reliability of propensity evidence admitted under s 398A was a matter for the jury. Probability reasoning of the kind established by Sutton, Hoch and Pfennig should no longer be applied. Where collusion, unconscious influence or the like was raised as an issue, the judge should direct the jury that they must be satisfied beyond reasonable doubt that no such factor was operating before they used disputed similar fact evidence as part of their reasoning.
181 In R v Tektonopoulos [1999] 2 VR 412 Winneke P agreed with the observations of Callaway JA in Best that the legislative purpose of s 398A was to abrogate the “no other reasonable explanation” test for admissibility of propensity evidence as developed by the High Court in Hoch and Pfennig in favour of the broader approach taken by the House of Lords in P. His Honour added, however, that the changes brought about by s 398A might not greatly alter the conduct of criminal trials because of the overriding duty of a judge to ensure that there is a fair trial.
182 Queensland too has legislated about similar fact evidence and the difficulty of trials involving sexual offences and multiple complainants. Section 132A of the Evidence Act 1977 (Qld)provides that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion. The weight of that evidence is a question for the jury. Section 597A(1AA) of the Criminal Code provides that in considering separate trials in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion. Notwithstanding these provisions, the High Court has recently held, in Phillips v R (2006) 224 ALR 216, that Pfennig remains good law in Queensland.
183 The primary judge proceeded upon the assumption that, in the absence of “cross-admissibility”, any indictment for sexual offences involving multiple complainants should, as a matter of course, be severed. Indeed, his Honour went further, and observed that a failure to order separate trials in such a case would almost certainly result in a miscarriage of justice.
184 The primary judge arrived at this conclusion by a series of steps. He referred to Pfennig, which made it more difficult for the prosecution to lead propensity evidence in cases of this type, as having been incorporated into s 101 of the Evidence Act 1995 (Cth). He regarded that section as having laid down an “Australian standard”. Once it was accepted that a more stringent test for the admissibility of such evidence applied, it followed that there would be few cases in which trials involving multiple complainants would be permitted to proceed.
185 His Honour did not have the advantage of the High Court’s reasoning in Phillips when he delivered judgment in this matter. In Phillips it was held that the threshold for the admissibility of similar fact evidence in Queensland remained high, and had not been met on the facts of that case. The High Court added (at [79]) that this meant that the allegations, formulated in the charges brought against the appellant should have been “separately considered by different juries, uncontaminated by knowledge of other complaints”. The Court stressed that this was what Pfennig required, and that no other outcome would be compatible with a fair trial.
186 Phillips undoubtedly supports his Honour’s observations about the importance of Pfennig and its general impact upon applications for severance in cases alleging sexual misconduct. Pfennig does not, however, in our view, support his Honour’s conclusion that either Pfennig or s 101 of the Evidence Act 1995 (Cth) represents an “Australian standard”, at least in relation to the practice regarding separate trials.
187 Irrespective of whether Pfennig applies generally throughout Australia, the High Court has not stated definitively that separate trials must always be ordered if there is not cross-admissibility (except perhaps for the dictum in Phillips, to which we have just referred).
188 In Sutton v The Queen Brennan J (at 542) speaking of the discretion to order separate trials, expressed the principle in more guarded terms:
“Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials.”
189 In De Jesus v The Queen Dawson J formulated the test still more cautiously when he said (at 16) that the nature of some offences is such that:
“as a general rule they should not be tried together because of the risk of prejudice where the evidence admissible in proof of one is not admissible in proof of the other”.
190 Put simply, until recently, the authorities gave rise to a rule of practice in Australia that allegations of sexual offences committed against different victims should ordinarily be tried separately if the evidence relating to one complainant was not admissible when considering the case of another. That rule of practice, endorsed in general terms by Kirby J in KBT v The Queen (1996) 191 CLR 417 (at 432), and also in qualified terms by McHugh J in KRM v The Queen (2001) 206 CLR 221 (at [38]), has been expressly abrogated in Victoria by statute. In that State, it is by no means uncommon for applications for the trial of separate counts to be refused notwithstanding that the accused is charged on the one presentment with offences against different victims and the evidence in respect of one or more counts is inadmissible in respect of the other counts. See, for example, R v CHS (2006) 159 A Crim R 560 at 575 per Eames JA. If that occurs, a propensity warning will almost certainly be required. See KRM v The Queen at [38].
191 In R v Rajakaruna (2004) 8 VR 340 Eames JA discussed the authorities concerning s 398A of the Crimes Act in a case involving sexual offences and multiple complainants. His Honour noted that the trial judge had ruled that all the evidence was cross-admissible as to all offences, concerning all complainants. The Court of Appeal concluded that the trial judge had erred in so holding, and also held that the jury had not been directed adequately as to the limited use that could be made of such evidence. It upheld the appeal against conviction.
192 Importantly, however, the Court of Appeal said nothing about whether the indictment should have been severed and separate trials ordered with respect to each complainant. Rather, it held that this would be a matter for the judge at retrial. Plainly, the Court accepted that, in Victoria at least, it is not a precondition to a single trial involving multiple complainants that their evidence be cross-admissible. Instead, the matter is generally dealt with by appropriate, strongly worded, directions. Indeed, the Court of Appeal seems to require, in such trials, not merely what it terms a “separate consideration” direction, but also what it describes as “propensity” and possibly “uncharged act” directions. See generally R v TJB; R v Buckley (2004) 10 VR 215; and R v DCC (2004) 11 VR 129.
193 It should not be thought that the position which now applies in Victoria is greatly different from that which had been taken at common law before the High Court reformulated the approach to severance in cases alleging sexual misconduct. The position in England is now, and always has been, that cases involving multiple complainants can be severed. However, they can be tried before the same jury even where there is no cross-admissibility depending upon the particular circumstance. See, for example, R v Flack [1969] 1 WLR 937; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Blackstock (1980) 70 Cr App R 34; R v Wells (1988) 92 Cr App R 24; R v Dixon (1989) 92 Cr App R 43; R v Cannan (1991) 92 Cr App R 16; and Director of Public Prosecutions v P.
194 More recently, in R v Christou, Lord Taylor CJ having reviewed the authorities, concluded that the relevant principles had been correctly explained in R v Cannan and in Director of Public Prosecutions v P. His Lordship said that the appropriateness of separate trials would depend upon the particular facts of each case. Judges would often consider it right to order separate trials but to hold that either generally, or in respect of any particular class of case, the judge must so order would be to fetter a discretion given by statute. See generally Archbold Criminal Pleading Evidence and Practice 2006 at §1-170 to §1-172.
Conclusion
195 The primary judge gave careful consideration to each of the matters to which we have referred. His Honour traced the history of s 34(2), and the various provisions upon which that section was based. He dealt in detail with the relevant authorities. Those that he omitted to mention do not take the matter much further.
196 His Honour was struck by the fact that, under the Extradition Act, Australia is prepared to extradite to many countries in which corruption flourishes, there is little practical respect for human rights, and judicial systems barely function. He considered it peculiar therefore that extradition to New Zealand, a country at which none of those criticisms could be levelled, might actually be more difficult by reason of the statutory bar in s 34(2).
197 In any event, as his Honour observed, s 34(2) had to be applied according to its terms. He added that it was clear from the language of the subsection that, while judicial and other minds might differ as to what might be “unjust” in any given case, once a finding of injustice had been made, the court could do nothing other than order the release of the fugitive. Section 34(2) was not discretionary.
198 His Honour was acutely aware that any conclusion that it would be “unjust” to surrender a person to New Zealand on the basis that that person could not receive a fair trial should not be lightly reached. On the other hand, a court could not order a fugitive’s return (in circumstances where it would be unjust) merely because of concern about Australia’s relations with New Zealand.
199 His Honour was plainly concerned about what he described as the “public policy” implications of his decision. He said (at [131]-[132]):
“This second aspect has also occasioned my anxious concern. However, as indicated above, I am not only bound by the approach taken in Bannister, but on reflection consider that the Bannister conclusion is inescapable for an Australian court, where there is a divergence between New Zealand and Australian law, however contestable, in a matter sufficiently serious as to turn the issue on the question of injustice. The divergence in my view, as to the Longman direction, does have that quality in the present cases. I see no way around this in New Zealand’s favour.
Let me make it clear: my preference would be that the legislation should make it plain that New Zealand courts should deal with these problems and, in cases of such serious allegations, Australia should accept any degree of injustice to Australian judicial eyes that is not shared by our genuinely respected New Zealand counterparts: Australians generally would wish for the same degree of respect for our criminal justice system from the New Zealand parliament. But that is not what our Extradition Act says. It specifically envisages that there might be ‘injustice’ – a broad concept – in extraditing a person to New Zealand. It seems to me that, applying the Act according to its terms, the applicants have made out their case against surrender. Sackville J indicated in Venkataya at [163] that, if the result in that case was unsatisfactory, legislative change might be the answer. I venture to suggest that the outcomes in Venkataya, Bannister and this case, although regarded as necessary by the persons who decided them, may from a public policy point of view be less than satisfactory.”
200 His Honour concluded as follows (at [142]):
“If trials were ultimately to proceed in New Zealand, the best result for the applicants of the inevitable pre-trial considerations of how the trials should be conducted would be that they would, contrary to the New Zealand prosecuting authorities’ present intentions, be tried separately in relation to each charge. There is, nevertheless, very likely to be a high degree of unfairness to the applicants through being handicapped in preparing their defences by the long delays in the allegations not being brought to their notice until 2003, between 22 and 31 years later. Further, such trials would occur without the guarantee of a strong warning by the judge to the jury as to the very real problems in meeting such old allegations. In Australia the applicants would have such a guarantee; Australian courts would not permit any such trial to occur without such a warning being given, however serious the charges. On account of that and other matters aggravating the effects of the delay, that delay in bringing the allegations to the attention of the applicants would make it, as it seems to me, unjust or oppressive to surrender them, notwithstanding the great seriousness of the charges. The applicants must, accordingly, as the Act requires in such circumstances, not be so surrendered.”
201 As we have already indicated, we are not persuaded that Bannister was “plainly wrong”. In any event, his Honour was bound to follow the reasoning of the Full Court in that case. That meant that he was bound to order the release of the respondents if he concluded that their trial in New Zealand would necessarily be unfair.
202 The central question in this appeal is whether his Honour correctly applied the reasoning in Bannister to the facts of this case. On the view we consider should be taken of the ratio of Bannister,he did not.
203 The injustice limb of s 34(2) should not be approached by comparing the differences between Australian and New Zealand rules of evidence and criminal procedure. The question is not whether these systems differ. It is to be expected that they will.
204 Nor is the question whether one system offers a greater measure of justice than the other. As between countries as close as Australia and New Zealand, some might see that as a meaningless question in any event. If it could be answered at all, the answer — of its nature highly contestable — could only be arrived at after a careful consideration of an array of competing and interacting policy considerations, legislation and case law. Such is the nature of the quest for justice in parliamentary democracies.
205 The vital question is whether the primary judge was correct in holding that the respondents would not be assured of a fair trial in New Zealand.
206 The requirement for a Longman warning, upon which so much of his Honour’s reasoning rested, came into being because of legislative changes by all States and Territories to the common law rule of practice that required a warning to be given in cases involving sexual offences.
207 In New South Wales, Queensland, South Australia, Tasmania and the Australian Capital Territory legislation provides that a trial judge is no longer required by any rule of law or practice to warn a jury that it would be unsafe to convict the accused on the uncorroborated evidence of a complainant.
208 In Victoria, Western Australia and the Northern Territory the legislation goes further. It provides not merely that the trial judge is not required to give such a warning, but actually prohibits one from being given. It should be noted, however, that in Victoria and the Northern Territory, the relevant provisions expressly allow for comments to be made on the evidence, provided they are “appropriate” and in the interests of justice.
209 Longman was decided against the background of s 36BE(1) of the Evidence Act 1906 (WA). That section, which was confined to sexual offences, has since been repealed and replaced by a more general provision which applies to corroboration warnings in all trials on indictment.
210 Before formulating the warning that the High Court said had to be given, it summarised the effect of the relevant legislation, as it then stood, as follows (at 87-8):
“No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par. (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par. (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only. Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which par. (a) eliminates.”
211 In other words the Court considered that, in the context of s 36BE(1), it was necessary for the accused to demonstrate some special circumstance concerning the evidence of the complainant, which called for a warning. In Longman that special circumstance was the lengthy period (some twenty years) that had elapsed between the date of the alleged offences and the trial.
212 The rationale for the need to give a warning of the kind discussed in Longman rests upon the need to ensure that an accused person has a fair trial. There will always be a danger of a miscarriage of justice if the jury is not warned where there is a possibility that particular evidence may be potentially unreliable. Judges are thought to recognise potentially unreliable evidence. A jury may not. In those circumstances, it is necessary to warn the jury the danger of the unreliability of that evidence and of the consequences to the accused in addressing that evidence.
213 In the present case, the primary judge concluded, on the basis of Longman (as well as both Crampton and Doggett) that if the respondents were to be tried in Australia, they would be guaranteed that a “firm and unmistakable” warning would be given to the jury in precisely the terms stipulated in Longman. In New Zealand, however, there would be no such guarantee. His Honour reasoned that this put the respondents in a position broadly equivalent to that of the appellant in Bannister. It meant that they could not receive a fair trial in New Zealand. In other words, he regarded the absence of a Longman warning as so fundamental as to equate it to the use, in Bannister, of representative charges.
214 The Longman warning developed as a judicial response to particular legislative amendments that significantly weakened the protection afforded to accused persons. The question whether any warning as to the dangers of convicting in the absence of corroboration is required, and if so, in what terms such a warning should be given will ordinarily depend upon the issues raised in a particular trial and the evidence taken as a whole. See R v Papamitrou (2004) 7 VR 375 at [40] per Winneke P.
215 Longman has been read by some courts as laying down, in a highly prescriptive manner, the precise warning that must be given to a jury in every case involving lengthy delay. In our view, neither Longman, nor for that matter Crampton or Doggett, should be understood in that way. Longman established that it is imperative to give a warning, in appropriate cases, about the effect of delay upon the ability of the accused to test the complainant’s evidence. It did not purport to set out, formulaically, the nature of that warning, only that it be given in substance. Nor did the High Court stipulate a fixed period of time after which any such warning must be given.
216 A long line of authority, including High Court authority, holds that a trial judge’s directions must be tailored to the facts of the particular case. Properly understood, Longman does not, in our view, override that principle. Indeed, the High Court in Longman said in relation to the warning traditionally given in cases involving sexual offences (at 86):
“In practice, the warning given under the rule of practice varies from case to case. There are no set words and the terms of the warning are adapted to the particular circumstances”.
217 The key factor in Longman that necessitated a special warning was the appellant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. The jury should have been told that as the evidence of the complainant could not be adequately tested after the passage of more than twenty years it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, was satisfied of its truth and accuracy. Longman itself, however, does not identify clearly when a warning is mandatory, or in what precise terms it should be given: see R v GPP (2001) 129 A Crim R 1 at [28] per Heydon JA.
218 New Zealand submitted that since Doggett, intermediate appellate courts in Australia have approached the Longman warning in quite different ways. It submitted, for example, that a stricter approach had been taken in R v BWT (2002) 54 NSWLR 241; R v SJB (2002) 129 A Crim R 572; R v GS [2003] NSWCCA 73; and R v WSP [2005] NSWCCA 427. However, it submitted that a less rigid approach had been taken in R v DGB (2002) 133 A Crim R 227; Crisafio v The Queen (2003) 27 WAR 169; RBK v The Queen [2004] WASCA 216; Angliss v The State of Western Australia [2005] WASCA 162; JJB v R [2006] NSWCCA 126; R v Hopper [2005] VSCA 214 and R v CHS. These cases were also said to illustrate an ongoing debate, in Australia, as to how long a delay may require the giving of a warning, as distinct from perhaps making a mere comment.
219 We are not persuaded that the gap between the requirement in Australia that a Longman warning be given, and the apparently more flexible approach taken in New Zealand as a result of R v M is as great as the respondents contend. R v M did not hold that a Longman warning should not be given. Rather, it emphasised that the adoption of a requirement that a particular direction using particular words be given in every case, without consideration of the evidence, would be contrary to the essential notion that a summing-up should be tailored to the circumstances of the particular case. It may be that R v M overstates the level of rigidity implicit in Longman. However, nothing of any consequence to this appeal turns upon that.
220 It should be noted that the enactment of the Evidence Act 1995 (NSW) did not affect Longman. Section 164(3) abolished whatever was left of the common law requiring a warning relating to victims of sexual crimes and children. Section 165(2) introduced a duty to warn about evidence of a kind that may be unreliable, but only if such a warning is requested by a party. Section 165(5) provided that s 165 did not affect any other power of trial judges to give a warning to, or to inform the jury. In R v GPP, Heydon JA observed (at [35]) that s 165(5) operated to preserve Longman. See also Robinson v R [2006] NSWCCA 192.
221 It should also be noted that the provisions of the New Zealand Evidence Act to which Gault J referred when, in R v M, he discussed recent legislative amendments in that country, differ in certain key respects from their Australian counterparts. The key section leaves a trial judge with a general discretion, in any case, to warn the jury if such a warning is considered appropriate. It is hardly surprising, having regard to that provision, that the New Zealand Court of Appeal has a different view to the courts of this country about the best means of ensuring a fair trial. The object of a fair trial remains the same.
222 In our view, the primary judge gave too much weight to the need for a Longman warning to be given in assessing whether the respondents could receive a fair trial in New Zealand. As R v M makes clear, courts in that country are aware of the difficulties that can confront accused persons in such circumstances. They are also aware of the need for trial judges to bring home these difficulties to juries. The courts of both countries have exactly the same object, which is a fair trial. The judgment of Gault J in R v M is explicit in its reference to that object, and to the provisions of the New Zealand Bill of Rights Act 1990 (NZ)that underpin the right to a fair trial. They differ from our courts only as to how best to achieve that object, preferring to retain greater flexibility in the form in which any warnings are given.
223 The facts in Bannister were far removed from those in the present case. In that case the appellant faced a trial that was almost certain to be conducted in a manner that would render it impossible to determine whether the jury as a whole, or perhaps even a majority of its members, were actually satisfied of his guilt in relation to any one particular occurrence of an offence. The Full Court, acting in accordance with the principles established by the High Court in R v S, considered that a trial conducted in that way could not be fair. It was on that exceptional basis that the Full Court held that it would be unjust to order the appellant to be returned to New Zealand.
224 The Longman warning, important as it plainly is, does not seem to us to be as integral to a fair trial as whether a jury has actually agreed upon the guilt or innocence of the accused on a particular count. We are not persuaded that any trial in New Zealand, conducted in accordance with the principles laid down in R v M, would necessarily be unfair. It cannot be assumed that a trial judge in New Zealand would not give such a warning.
225 Section 34(2) requires the respondents to satisfy the Court that it would be unjust to require their surrender. While it may be accepted that this requirement could be met by showing that it was likely that they would not receive a fair trial, it cannot be met by simply advancing the possibility that a trial judge might not, in the exercise of discretion, give a Longman warning.
226 It follows that, insofar as the primary judge based his decision in this case upon the lack of a guaranteed Longman warning in New Zealand, his Honour fell into error.
227 His Honour regarded the issue of cross-admissibility as being less important than the issue of a Longman warning. Nonetheless, he considered that the possibility that there might be a trial in New Zealand involving multiple complainants, in circumstances where their evidence would not be cross-admissible, added to the injustice of requiring the respondents to be surrendered. In his Honour’s own words, the “apparent possibility” that such a trial might be held in New Zealand was a circumstance “exacerbating the disabilities inherent in the applicants having to defend themselves so long after the alleged events”.
228 New Zealand also challenged his Honour’s reasoning on this issue. It submitted that, in New Zealand, the test to be applied in determining whether to admit propensity evidence is whether the probative value of the evidence outweighs any prejudicial effect: R v Holtz. It noted that there was some support for the Pfennig approach in that in R v Mitchell (unreported, CA415/00, 29 March 2001) the Court of Appeal held that relevant to that issue is whether there is “a real chance” of concoction. It submitted that the differences between the approach taken in New Zealand, and the position in New South Wales, Tasmania and the Australian Capital Territory (where the uniform Evidence Acts apply) is merely that the relevant test in these jurisdictions involves the additional requirement that the probative value “substantially” outweighs any prejudicial effect. It submitted, however, that if anything this makes it more likely that separate trials will be refused in these jurisdictions, rather than granted.
229 We accept New Zealand’s submission that the variance between the position under Australian law and that of New Zealand amounts to little more than a different formulation of a trial judge’s discretion to exclude unfairly prejudicial evidence. This is classically a matter that should be left to the trial courts in New Zealand, rather than forming the basis of a ruling that a trial in that country would necessarily be unfair. A magistrate or judge in Australia will normally not have any detailed information as to the evidence that will be led at the trial. While the primary judge recognised that he had only “scant material available” to him, he nonetheless drew certain conclusions about the likelihood of a joint trial that we regard as unwarranted.
230 It is true that a New Zealand police officer gave evidence, of a necessarily vague and speculative nature, that the prosecution intended to conduct a single trial involving multiple complainants against each respondent. The probative value of that evidence was extremely limited, since the decision as to how any indictment might be framed would not be that of the police, but rather that of the prosecutor briefed to conduct the trial. Moreover, whether or not there would be separate trials, assuming that an application for separate trials were made, is ultimately a matter for the trial judge to determine. That decision could only be taken in the light of the evidence to be led.
231 In our view, as with the Longman warning, the differences that exist in our two countries between the rules of evidence and procedure governing severance of counts in cases involving sexual offences do not warrant the conclusion that it would be unjust to return the respondents to New Zealand.
232 New Zealand also challenged various rulings made by his Honour whereby he admitted evidence of certain matters that were said to be irrelevant to the issues raised under s 34(2), and inadmissible due to s 34(4). The relevant evidence is the “Burke/Mulvihill notes”, the affidavit of Ken Clearwater and the affidavit of Justin Richardson and related police job sheets. New Zealand submits that this evidence was admitted to prove possible contamination or collusion between complainants. It is unnecessary to deal with this ground save to say that we consider that s 34(4) precluded consideration of the contamination point.
233 In summary, the primary judge asked himself the correct question when he queried whether the respondents would receive a fair trial in New Zealand, but he did not answer it correctly. Neither the absence of a Longman warning, nor the possibility that each respondent might be tried before a single jury on a number of counts involving different complainants warranted a finding that a trial in New Zealand would not be fair in the relevant sense. That is, a finding that the quality of the trial in New Zealand would be such that it would be unjust to surrender the respondents to New Zealand.
234 Having considered all the factors taken into account by the primary judge, we conclude that, notwithstanding the long period that has elapsed since the offences were allegedly committed, it was not established before his Honour that it would be unjust to surrender the respondents to New Zealand.
235 The appeal must be allowed. His Honour’s orders that the decision of magistrate Dillon be quashed, that the respondents be released pursuant to s 35(2) of the Extradition Act, and that New Zealand pay the respondents’ costs must be set aside. In lieu thereof the magistrate’s orders that the respondents be surrendered to New Zealand and that warrants under s 38 should issue, should be confirmed. Given that the respondents sought and obtained their costs in the proceeding before the primary judge, there is no reason why they should not now be ordered to pay the appellant’s costs of and incidental to this appeal, as well as the costs below.
| I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. |
Associate:
Dated: 5 October 2006
| Counsel for the Appellant: | Ms W Abraham QC and Mr I Bourke |
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| Solicitor for the Appellant: | Commonwealth Director of Public Prosecutions |
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| Counsel for the Respondents: | Mr P Byrne SC and Mr M Thangaraj |
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| Solicitor for the Respondents: | Greg Walsh & Co |
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| Date of Hearing: | 2 August 2006 |
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| Date of Judgment: | 5 October 2006 |
