FEDERAL COURT OF AUSTRALIA

Newman v New Zealand [2012] FCAFC 133

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The order made by the Supreme Court of Queensland on 24 August 2011 dismissing the appellant’s application under s 35 of the Extradition Act 1988 (Cth) for the review of the warrant of 14 June 2011 whereby the Magistrates Court at Brisbane, Queensland ordered that the appellant be surrendered to New Zealand (the surrender warrant) is set aside.

3.    In lieu thereof, it is ordered that the surrender warrant be quashed and that the matter be remitted to the Queensland Magistrates Court with a direction, pursuant to s 35(2)(b) of the Extradition Act 1988 (Cth), that a magistrate order the release of the appellant.

4.    The respondent pay the appellant’s costs of and incidental to the appeal with costs and in the courts below being reserved with liberty to apply. As that liberty to apply:

(a)    the appellant is to make such application, if any, in writing together with an outline of not more than two pages and file and serve the same on the respondent by not later than 17 September 2012;

(b)    the respondent is to file and serve any response and related outline not later than 19 September 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

THE COURT:

1    Allan Rex Newman, the appellant, is an 87 year old man (born in 1925). He has challenged his extradition to New Zealand under the Extradition Act 1988 (Cth) (the Act). In New Zealand he faces charges that, in summary, allege:

(a)    between 1957 and 1961, he committed offences of indecent assault and inciting an indecent assault against his daughter (“G”), who was then aged between 5 and 9 years old; and

(b)    between 1966 and 1975, he committed offences of a like kind against his other daughter, (“R”), who was then aged between 10 and 17 years old.

The individual charges made against Mr Newman in New Zealand are detailed later in these reasons for judgment.

2    To date, Mr Newman’s challenge to his extradition has been unsuccessful. On 14 June 2011, in the Queensland Magistrates Court, Hine DCM made an order under s 34 of the Act that Mr Newman be surrendered to New Zealand. He then sought the review of that order by the Supreme Court of Queensland under s 35 of the Act. On 24 August 2011, that court (Martin J) dismissed the review application: Newman v New Zealand (2011) 282 ALR 593. Mr Newman now appeals to this Court against that dismissal order.

3    Extradition of a person to New Zealand under the Act is initiated either by their arrest pursuant to a New Zealand issued warrant which has been indorsed for that purpose by an Australian magistrate (s 28 of the Act) or, alternatively, pursuant to a provisional warrant issued by an Australian magistrate who is satisfied that an arrest warrant has been issued in New Zealand (s 29 of the Act). In either case, the procedure after arrest is for the person charged with the New Zealand offence(s) to be brought forthwith after arrest before an Australian magistrate. By s 34(2) of the Act, a magistrate may decline to make a surrender order and shall order the person released if satisfied by the person concerned of one or more of the following:

(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.

4    The review conducted under s 35 of the Act either by this Court in its original jurisdiction or by a Supreme Court is a rehearing in respect of issues of both fact and law.

5    In this appeal, Mr Newman advances two grounds. Firstly, he contends that, in the prevailing circumstances, which we detail below, the conclusion by the Supreme Court that his review application should be dismissed was unreasonable. Further or alternatively, he contends that, in any event, the charges made against him in the New Zealand warrant are “representative charges” such that it would be unjust or oppressive for him to be surrendered to New Zealand so as to face trial in respect of them.

6    The two grounds are interrelated in the sense that each is said to provide a basis as to why it would be unjust or oppressive for Mr Newman to be surrendered to New Zealand. Nonetheless, it is convenient first to consider whether, aside from the “representative charge” question, there is any merit in the appeal.

An unreasonable conclusion?

7    Both before the primary judge and on the hearing of the appeal Mr Newman pointed to the following as to why it was that it was either unjust or oppressive to order his return to New Zealand:

(a)    Old age.

(b)    Delay. G first complained to police in New Zealand in December 2008; her sister, R in February 2009. This was, respectively, 47 years and 33 years after the last of the alleged offences. The New Zealand warrant for Mr Newman’s arrest was not issued by the District Court at Manukau in New Zealand until June 2010. By then, Mr Newman had not resided in New Zealand for over 30 years. He moved from Australia to New Zealand in 1950. His first wife died in the mid-1970’s. He moved back to Australia in 1978. He has resided here ever since, presently by himself.

(c)    Absence of contribution to delay. There is no suggestion that Mr Newman left New Zealand so as to avoid being earlier charged. Nor is he in any way responsible for the lag between when the complaints were made and when the arrest warrant was issued in New Zealand. That delay was not explained by New Zealand in the material before the Supreme Court.

(d)    Loss of a potential witness. The alleged offences occurred at the then Newman family residence and at a time when Mr Newman’s long since deceased first wife lived there.

(e)    Deterioration of memory by effluction of time both in relation to Mr Newman and his complainant daughters as well as any other contemporary witnesses.

(f)    Absence of appropriate health care for Mr Newman in New Zealand. Mr Newman has suffered from serious illness in the past but it is not contended that he is too ill to travel.

(g)    Absence of ties by him to New Zealand and dislocation. Mr Newman has nowhere to live in that country. His daughters, G and R live there but they are the complainants. His sole source of income is an Australian age pension. He has no savings. Neither does he own any real property other than the home in which he resides and that has had to be mortgaged in order to fund his legal expenses to date. He has lived in his present residence for the past six years. Surrender to New Zealand would entail his relocation there for an extended period, perhaps in excess of 12 months with consequential dislocation from the community where he presently lives.

8    Each of these matters was expressly taken into account by the primary judge. In the result and after extensive quotation from pertinent authority, his Honour concluded (at [26]) that these circumstances did not take the present case “out of the reach of the clear statement” of the Full Court of this Court in New Zealand v Johnston (2011) 274 ALR 509 at [123] (Johnston), which his Honour identified as:

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

Johnston was another case involving a challenge by an elderly man to his surrender to New Zealand in respect of alleged offences against minors committed many decades beforehand which had become the subject of latter day complaint.

9    Applying Johnston, the learned primary judge concluded that it was not unjust or oppressive to surrender Mr Newman. In so doing, his Honour stated (at [29]) that Mr Newman “had not demonstrated actual prejudice which would help to establish injustice or oppression”. His Honour observed (at [29]) that, “He may have a sound case for the charges not being proceeded with but that is a decision for the New Zealand courts to make.”

10    As to any prospect that Mr Newman might spend a lengthy period on remand in New Zealand while awaiting the disposition there of the charges made against him, his Honour noted that this had been met by New Zealand’s undertaking that any application for bail which he made would not be opposed. His Honour also found that issues raised by Mr Newman concerning his accommodation and health care in New Zealand were not, on the evidence, insurmountable. He further found ([30]) that Mr Newman “had not established that he would not be able to receive appropriate health services in New Zealand”.

11    The meaning and effect of the Act in its application to the surrender of persons to New Zealand is no new subject. Johnston apart, a five member Full Court examined the statutory scheme with respect to extradition to New Zealand in a joint judgment in an earlier case, New Zealand v Moloney (2006) 154 FCR 250 (Moloney).

12    The analysis of the Act in its application to New Zealand in Moloney confirmed what a reading of it would in any event suggest, which is that, in respect of extradition to that country from Australia, the Act provides for a “much simpler process than extradition to other foreign states” (Moloney at [28]).

13    That greater simplicity of process may be demonstrated by contrasting three features of the scheme in Pt III of the Act in respect of extradition to New Zealand with the general scheme in Pt II of the Act in respect of extradition to other foreign countries which fall within the definition of “extradition country” found in s 5.

14    One distinction is that, unlike extraditions to other countries, a New Zealand extradition need not be initiated (or, where a provisional warrant is first obtained, confirmed) by a formal extradition application to the Executive Government of Australia by a foreign state the furtherance of which is dependent upon a decision of the Attorney-General. Instead, a New Zealand issued warrant, when indorsed by an Australian magistrate in the statutory form, itself provides the foundation for the arrest in Australia of the alleged offender (compare s 12 and s 16 with s 28 of the Act).

15    A related distinction is that, in respect of New Zealand extraditions, no decision-making role at any stage of the process leading up to and including the issue of a surrender warrant is consigned to the Attorney. Instead, the Attorney’s role is confined to making extradition decisions in respect of cases where, a surrender warrant having been issued, the person concerned is in custody in Australia in respect of unrelated Australian offences (compare s 36 and s 37 in Pt III of the Act with the roles consigned to the Attorney by s 12(3), s 16 and s 22 in Pt II of the Act).

16    Yet another distinction is that satisfaction as to the absence of an “extradition objection” (defined, s 7) which, to the extent modified by regulations made under the Act in respect of particular foreign states or types of foreign state, is a feature of the general scheme for extradition of persons from Australia as found in Part II, has no place in the scheme in Part III in respect of extraditions to New Zealand. Instead, in New Zealand extraditions, the question is whether the person concerned can satisfy a magistrate or, on review, this Court in its original jurisdiction or a Supreme Court of one or more of the matters set out in s 34(2) of the Act?

17    These distinctions and the relative simplicity of procedure entailed are but a present manifestation of a longstanding assumption by the Australian Parliament, evident in earlier extradition regimes, of fairness on the part of New Zealand, based on the closeness of the relationship between Australia and that country and the high regard in which its courts are held here: Moloney (at para [36] and [37]). That assumption acknowledged, it does not have the consequence that it is irrelevant to take into account differences as between Australian and New Zealand criminal law practice and procedure in deciding whether it would be “unjust or oppressive or too severe a punishment” to surrender a person to New Zealand.

18    As the Full Court observed in Moloney (at [39]), injustice or oppression has a long history in extradition law as a bar to the surrender of a person. It is not necessary for the purpose of determining this appeal to rehearse at length the detailed examination of authority by the Full Court which formed the basis for that observation in Moloney. What may, with respect, be noted is that, detailed though that examination is, it is not apparent from the Full Court’s reasons for judgment in Moloney that the Court’s attention was drawn to the obiter dicta of a majority in the High Court concerning the meaning of the expression, “unjust or oppressive or too severe a punishment”.

19    Those obiter dicta are to be found in Foster v Minister for Customs and Justice (2000) 200 CLR 442 (Foster), a case which involved a challenge to a decision to surrender the appellant, Foster, to the United Kingdom. Though procedurally different from an extradition to New Zealand, extraditions to other Commonwealth countries require that an extraditable person not be surrendered if an official is satisfied that it would be “unjust or oppressive or too severe a punishment”.

20    The measuring of a surrender decision on the basis of that criterion in such cases arises in this way. “Commonwealth countries”, are defined by reg 3 of the Extradition (Commonwealth Countries) Regulations 1998 (the Regulations), and, unsurprisingly, include the United Kingdom but, by omission from the list, not New Zealand. A criterion similar to that found in s 34(2) is, by s 11 and s 22(3)(e) of the Act and reg 7 of the Regulations, introduced as a consideration supplementary to those specified in s 22(3) of the Act. Thus, in the case of a defined Commonwealth country extradition application, surrender must also be refused if the Attorney (rather than, as with New Zealand, a judicial officer) is satisfied that it would be “unjust or oppressive or too severe a punishment” to surrender the person. The different procedural context in which consideration of that expression arose in Foster does not provide a basis for distinguishing the obiter dicta.

21    In Foster, Gummow and Hayne JJ (at [41] made the following observations about the expression “unjust or oppressive or too severe a punishment”:

At least for most purposes, the words "unjust or oppressive or too severe a punishment" will be better understood as providing a single description of the relevant criterion which is to be applied rather than as three distinctly different criteria. The use of the disjunctive "or" might suggest the need to consider each element of the expression separately but for several reasons we think it preferable not to approach the provision in that way. First, there is the fact that the terms used are, as we have already said, qualitative descriptions requiring assessment and judgment. Secondly, the use of the words "too severe" suggests a need for comparison with some standard of punishment that is regarded as correct or just or, at least, not too severe. Thirdly, the considerations which may contribute to the conclusion that something is "unjust" will overlap with those that are taken into account in considering the other two descriptions. It would, then, be artificial to treat the three ideas as rigidly distinct. Each takes its content, in part, from the use of the others.

Later (at [43]), their Honours observed of the expression that it required a value judgment to be made according to Australian standards, not the standards of any other country. In so doing, they referred by analogy and with approval to a suggestion made in relation to Canadian extradition law in La Forest, Extradition to and from Canada, 3rd ed (1991), p 241, that surrender decisions should depend on how such matters are regarded in Canada, not the foreign state. Gummow and Hayne JJ stated (at [41]) that the expression, “requires consideration of how the offence or offences for the prosecution of which the extradition is sought would be viewed in this country”. To like effect in Foster (at [95]) is the statement which Kirby J made when considering the punishment element of the expression that, “This must be judged through Australian eyes.” The remaining judges in Foster, Gleeson CJ and Gaudron J, did not find it necessary to make any observations about the meaning of the expression.

22    In the course of the hearing of the appeal we drew these obiter dicta in Foster to the attention of the parties and granted leave for the making of supplementary written submissions concerning them. In the result, this elicited a controversy as to whether these dicta were or were not consistent with the approach of the Full Court in Moloney. Mr Newman further submitted and New Zealand agreed that it was a distinguishing feature that, as it appeared in the Regulations and unlike in s 34(2) of the Act, the expression “unjust or oppressive or too severe a punishment” was cast against the background of an assumption of fairness on the part of the requesting foreign state. We have already referred to such an evident assumption in the Act.

23    That assumption noted, if, in respect of a New Zealand extradition, a magistrate or, on review, a court were satisfied that the extraditable person’s surrender would be “unjust or oppressive or too severe a punishment” then that person’s release must not be ordered. The assumption does not displace the satisfaction criterion set out in the expression. It merely informs consideration of the criterion in its application to the circumstances of a particular extradition. In the case of a New Zealand extradition, those circumstances will, for the reasons given in Moloney, always include a general assumption that the person concerned will, if surrendered, receive a fair trial in that country’s courts. If, in respect of a particular case, there is some feature of the criminal law practice and procedure of New Zealand which would not be regarded as fair having regard to Australian criminal law practice and procedure, it would be no answer to point to that general assumption.

24    As a matter of construction, having regard to the context in which the expression appears and the subject matter, scope and purpose of the Act, satisfaction must be achieved by reference to Australian standards. The expression be “unjust or oppressive or too severe a punishment” governs satisfaction with respect to the surrender of a person by Australia to New Zealand. The surrender is an act of state by Australia which is regulated by the Act. It necessarily follows that the touchstone for satisfaction as to whether the criterion established by the expression is engaged in the circumstances of a particular case must be Australian standards for it is Australia that is asked to surrender the person. There is no basis for distinguishing the statements to this effect concerning the expression made by Gummow and Hayne JJ and Kirby J in Foster. To the contrary, we respectfully agree with their Honours’ preferred construction and adopt it. The context in which the expression is used in the Regulations is materially similar.

25    Though Foster was not, in terms, considered by the Full Court in Moloney, the subject of whether Australian values supplied the requisite standard was. The Full Court, as had Sackville J in New Zealand v Venkataya (1995) 57 FCR 151 (New Zealand v Venkataya) beforehand, regarded as applicable to the construction of the expression “unjust or oppressive or too severe a punishment” as it appeared in s 34(2) of the Act what had been said by Mahoney JA in Binge v Bennett (1988) 13 NSWLR 578 at 596-597 of the expression as it appeared in Australia’s now former legislative regime in respect of interstate extraditions as found in the Service and Execution of Process Act 1901 (Cth) (repealed):

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).

[Emphasis added]

Having in Moloney (at [139]) referred to Binge v Bennett and New Zealand v Venkataya, the Full Court regarded the proposition that Australian standards provided the relevant touchstone as following a “well worn path” in relation to the interpretation to expressions cognate to “unjust or oppressive or too severe a punishment” in English extradition law. Foster demonstrates that that “well worn path” enjoys the support of a majority in the High Court.

26    In Moloney the Full Court refused to overrule an earlier decision of a Full Court constituted by three judges, Bannister v New Zealand (1999) 86 FCR 417 (Bannister). In Bannister the Full Court had held that it was permissible to have regard to the quality of the trial which the accused person would receive in New Zealand and that it would be unjust or oppressive to return the person to New Zealand if the proceedings there would be likely to take a course which, in Australian courts, had been expressly disapproved by the High Court of Australia. Moloney therefore is an example of the deliberate measuring of the criterion provided by the expression “unjust or oppressive or too severe a punishment” by reference to an Australian standard.

27    The learned primary judge was not referred to Foster nor, for that matter, was the Full Court so referred in Johnston, the case which his Honour regarded as particularly applicable by analogy. The subject of whether reference must be made to Australian standards was not expressly addressed in Johnston but in that case the Full Court proceeded on the basis that Moloney and New Zealand v Venkataya were correctly decided.

28    Mr Newman did not submit that an absence of explicit reference by the learned primary judge to a need to measure satisfaction with respect to matters specified in the expression by reference to Australian standards rendered the judgment of the Supreme Court irremediably flawed. More particularly, apart from a jurisprudential difference between Australia and New Zealand in relation to representative charges, it was not submitted that, in respect of the measuring of any or all of the circumstances which his Honour did take into account, there was some other, uniquely Australian standard which, had it been adverted to, might have given Mr Newman the chance of a more favourable outcome. Instead, it was submitted that, accepting that the expression bore the meaning discussed at length in Moloney, the conclusion reached was unreasonable.

29    An appeal from a court exercising the review jurisdiction under s 35 of the Act is an appeal in a strict sense: Johnston at [22]. It is not for us, on the basis that we might have made a different factual value judgment if conducting that review, to interfere with his Honour’s conclusion that he was not satisfied that it was “unjust or oppressive or too severe a punishment” to surrender Mr Newman to New Zealand. In an appeal of the kind described, the Full Court’s task is to correct error. If the conclusion on the facts were so unreasonable that it could not have been made reasonably error would be present. That is not this case.

30    Viewed against the circumstances which the primary judge did take into account, his Honour’s conclusion was one reasonably open to him. Advanced age per se does not confer immunity from prosecution in Australia. Nor does an absence of any particular, current tie with Australia confer upon an individual immunity from prosecution in respect of an offence committed in Australia. These are not peculiarly Australian legal norms but, even if they were, they did not dictate satisfaction that Mr Newman’s surrender would be “unjust or oppressive or too severe a punishment”. The same is true of the length of time since the alleged commission of the offences charged, the passing in the interval of someone who might perhaps be a witness favourable to a defendant and the lengthy delay in the making of the complaints in respect of the alleged offences. These were all relevant considerations but they were all taken into account. The demise of Mr Newman’s wife may have told heavily in favour of being satisfied that it would be “unjust, oppressive or too severe a punishment” to surrender him were it shown that she could have given evidence of an exculpatory nature. As it was, quite what might have been the content of her evidence was entirely speculative.

31    Also taken into account but ameliorated by New Zealand’s undertaking not to oppose bail was the contingency that Mr Newman might spend a lengthy period on remand in New Zealand before the charges were dealt with there. His Honour’s findings as to accommodation and health care being available to Mr Newman in New Zealand were open to him on the evidence. Neither viewed individually nor collectively do the circumstances of the case dictate that the conclusion of the primary judge was so unreasonable that it could not have reasonably been reached.

32    There was no error in his Honour’s treating the question as to whether Mr Newman had a sound case for the charges not being proceeded with as one for the New Zealand courts. Indeed, even if there had been explicit reference to Australian standards, those standards, evident in the assumption upon which Pt III of the Act is cast, would necessarily have included an acknowledgement that any stay application in respect of the charges would receive a fair hearing in New Zealand’s courts.

33    Insofar as Mr Newman’s appeal is based on an allegedly unreasonable conclusion by the Supreme Court, that ground of appeal must fail.

34    Other bases for interference with the satisfaction based value judgment made in the exercise of the original, review jurisdiction might arise if some relevant consideration had not been taken into account or some irrelevant consideration into account or if some other error of law were present. The “representative charge” ground of appeal is put on the basis not so much that it was relevant but not taken into account but rather that, in so doing, an error of law was made. We now proceed to consider the merits of this ground.

Representative Charges?

35    The following charges were specified in the New Zealand warrant in respect of Mr Newman:

1.    Between the 16th August 1957 and 16th August 1958 at Manurewa indecently assaulted any female person, namely G … a girl then aged 5 years.

Section 208(1)(a) Crimes Act 1908

2.    Between the 16th August 1957 and 16th August 1958 at Manurewa indecently assaulted any female person, namely G … a girl then aged 5 years.

Section 208(a)(b) Crimes Act 1908

3.    Between the 16th August 1958 and 16th August 1959 at Manurewa indecently assaulted any female person, namely G … a girl then aged 6 years.

Section 208(1)(a) Crimes Act 1908

4.    Between the 16th August 1959 and 16th August 1961 at Manurewa indecently assaulted any female person, namely G … a girl then aged between 7 and 8 years.

Section 208(1)(a) Crimes Act 1908

5.    Between the 16th February 1961 and 15th August 1961 at Manurewa indecently assaulted any female person, namely G … a girl then aged 8 years.

Section 208(1)(a) Crimes Act 1908

6.    Between 1966 and 1967 at Manurewa indecently assaulted R … a girl then aged 10 to 11 years.

Section 133(1)(a) Crimes Act 1961

7.    Between 1966 and 1967 at Manurewa, being a male induced R … a girl then aged 10 to 11 years to do an indecent act upon him.

Section 133(1)(c) Crimes Act 1961

8.    Between the 1966 and 1967 at Manurewa indecently assaulted R … a girl then aged 10 to 11 years.

Section 133(1)(a) Crimes Act 1961

9.    Between 1967 and 1968 at Manurewa indecently assaulted R … a girl then aged 11 to 12 years.

Section 133(1)(a) Crimes Act 1961

10.    Between 1967 and 1968 at Manurewa being a male induced R … a girl then aged 11 to 12 years to do an indecent act upon him.

Section 133(1)(c) Crimes Act 1961

11.    Between 1968 and 26th May 1970 at Manurewa indecently assaulted R … a girl then aged 12 to 13 years.

Section 134(2)(a) Crimes Act 1961

12.    In 1969 at Manurewa indecently assaulted R … a girl then aged 12 to 13 years.

Section 134(2)(a) Crimes Act 1961

13.    Between 1969 and 1971 at Manurewa indecently assaulted R … a girl then aged 13 to 15 years.

Section 134(2)(a) Crimes Act 1961

14.    Between 1973 and 1975 at Manurewa indecently assaulted R … being a girl then aged 16 years.

Section 135(a) Crimes Act 1961

36    The warrant was accompanied by what was termed a “caption sheet” prepared by the New Zealand Police in which was included what was described as a “Summary of Facts”. A feature of that summary is that it gives a brief synopsis of what one might apprehend would be the particulars of the charges as derived from the evidence in chief and state of recollection of each complainant.

37    In their submissions, counsel for Mr Newman made an analysis of the charges and the summary of facts the accuracy of which was not disputed on the submissions made on behalf of New Zealand. With the benefit of that analysis, the following may be stated in respect of the charges and the accompanying factual summary:

(a)    In respect of both G and R, there is an absence of correspondence between the facts summarised and the charges. For example, charge 1 alleges an indecent assault on G between 16 August 1957 and 16 August 1958 when she was “a girl then aged 5 years” whereas in the factual summary in respect of this charge it is stated:

The complainant is unsure of the exact date that the following occurred, but believes it would have been between 1957 and 1958 when she was 5 to 6 years of age …

G was born on 16 August 1952. Taking the summary of facts at face value, charge 1 should therefore allege an event on a date unknown within a period of 2 years concluding on G’s 7th birthday in 1959. As Mr Newman submitted, there are similar discrepancies with respect to the other charges.

(b)    Also in relation to G, though charges 1 to 4 concern a discrete act, charge 5 does not. Though it charges an indecent assault having occurred between 16 February 1961 and 15 August 1961 with G then being said to be 8 years old, the allegations in the related factual summary disclose a different position:

The complainant is unsure of the exact date that the following occurred but believes that it was between 1959 and 1961 (when she was 7 to 9 years of age) as she recalls [Mr Newman] continued his acts of indecency on her in either the darkroom or in the area situated underneath the house.

The acts of indecency involved [details given] … In addition, the acts often involved [details given] …

The complainant recalls the acts of indecency occurring approximately once every four to six weeks.

(c)    Also in relation to R and having regard to the factual summary, charges 9 and 10 do not allege a specific act but rather a course of conduct:

… the touching … would occur approximately once every fortnight … the incidents would occur mostly at night times on weekends … Whenever [Mr Newman] wanted to initiate contact he would [details given] …

(d)    Likewise, it emerges from the factual summary that charge 14, which specifies a period “between 1973 and 1975” concerns an allegation of indecent assaults of R by Mr Newman “but on a less frequent basis”. He is said “to have persisted in his advances and the acts of indecency continued to occur in the garage or workshop area …”.

38    The absence of precise correspondence between the charges in the warrant and the accompanying factual summary does not demonstrate that the charges are “representative”. Correspondence could doubtless be achieved by appropriate amendment when the charges are before the courts of New Zealand and the assumption is that fairness would attend the question of whether or not to permit amendment to achieve that.

39    Counsel for New Zealand submitted that the focus of Mr Newman’s “representative charge” submission was on charges 5, 9, 10 and 14. This was true but that focus did not involve a concession that the other charges may not also entail the same vice which attends charges of this description.

40    Charges 5, 9, 10 and 14 are indeed examples of what was at the time of Bannister and Moloney and self evidently remains a practice in New Zealand. These charges do not particularise particular incidents but rather allege a course of offending conduct between two nominated dates. They are what are known as “representative” or “specimen” or “sample” charges: Moloney at [112] and [113].

41    As to the other charges, much might depend, so far as to whether these, too, are “representative” on whether they are particularised and whether the evidence which the complainants give is indeed as set out in the summary of facts. It is not though for us to speculate on such matters. On the materials to hand, the charges are not representative but instead make an allegation in respect of a particular incident.

42    The practice of formulating charges of a representative kind is one which is lawful in New Zealand: R v Accused [1993] 1 NZLR 385 (R v Accused). Any statutory intervention aside, that is emphatically not the position in this country where the practice has been described by the author of the leading judgment on the subject, Dawson J, as “clearly objectionable: S v The Queen (1989) 168 CLR 266 at 276; affirmed in KBT v The Queen (1997) 191 CLR 417 (KBT). The objection to the drawing of charges alleging offences of a sexual nature is no different to that which attends duplex charges generally. They entail latent ambiguity and have a tendency to embarrass an accused in the conduct of his or her defence. They compel an accused to meet a charge based on an uncertain number of occasions the proved occurrence of any one of which during the period alleged would constitute proof of that charge: Johnson v Miller (1937) 59 CLR 467 at 486-487. Charges so drawn also admit of the possibility that some members of a jury might find one incident during the period proved whereas others might be persuaded that it was another incident was proved with unanimity as to the proof of the charge being but a faÇade: KBT at 424.

43    Such statutory intervention as there is does not lead to a conclusion that there is no longer any difference as between New Zealand and Australia in relation to the employment of representative charges. In New Zealand, the permissibility of the practice has been enshrined in s 20 of the Criminal Procedure Act 2011 (NZ). In Queensland, the offence of maintaining a sexual relationship with a child, in respect of which the objectionable features of a representative charge are expressly tolerated by the Parliament of that State, has been added by an amendment so as to insert s 229B into the Criminal Code 1899 (Qld). The latter does not represent an Australian standard. Further, as Mr Newman correctly submitted, the essence of the offence created by s 229B is the maintenance of a relationship of a particular kind, not the commission of a particular indecent assault or the procuring of a particular indecent act. Even in Queensland, a representative charge in respect of the offence of indecent assault or procuring an indecent act would still be objectionable.

44    The learned primary judge did make reference to what might be the ramifications of a representative quality in some of the charges but it is not apparent that the subject was canvassed at length before his Honour and certainly not developed in the way Mr Newman’s case was developed on the appeal. His Honour concluded (at [16]) that most of the charges laid against Mr Newman did not fall into the category of representative charges. For the reasons given above, we agree with that conclusion. Having so done, his Honour stated:

Even if it were possible to formulate an order for extradition only on those charges which are not duplex, that would not prevent the prosecuting authorities in New Zealand from charging the applicant in that manner upon his arrival in New Zealand. In any case, the weight that must be given to the assumption that the New Zealand proceedings will be fair is heavy in these circumstances.

With respect, the latter statement fails to recognise that an assumed fairness in New Zealand proceedings is neither a substitute for measuring whether the surrender of a person is “unjust, oppressive or too severe a punishment” by reference to Australian standards nor a panacea for a surrender which would entail a violation of those standards. For the reasons given above and in greater detail in Bannister and Moloney, to surrender Mr Newman in respect of charges 5, 9, 10 and 14 in the warrant would be unjust or oppressive. To this extent at least, Mr Newman’s appeal must be allowed.

45    There being no basis for disturbing the conclusion reached by the learned primary judge in respect of the other charges specified in the New Zealand warrant this necessarily raises the questions as to whether it is permissible and, if so, appropriate to order Mr Newman’s surrender in respect of the balance of the charges only?

46    As initially made, the parties’ respective submissions assumed that it was possible to order the surrender of a person to New Zealand in respect of some only of the charges specified in the warrant. This is not expressly stated in Pt III of the Act other than in respect of voluntary consent to surrender by an extraditable person: s 33A(1) (“consents to being surrendered to New Zealand in relation to an offence for which the indorsed warrant has been obtained” (emphasis added)). However, as a matter of construction, s 34(2) directs attention to the offence or offences for which the New Zealand issued warrant was issued. It requires that the offences be examined individually and also admits of their being examined collectively in terms of the test that it posits as to whether the magistrate or, on review, a court is satisfied that it would be “unjust, oppressive or too severe a punishment” to surrender the person to New Zealand. It necessarily follows from this that it is possible to order the surrender of a person in respect of some but not all of the offences specified in an indorsed New Zealand warrant.

47    As is evident from the passage quoted, the learned primary judge considered that, if it were possible only to surrender Mr Newman in respect of non-representative charges, that would not prevent New Zealand, on his arrival there, from charging him with further, representative charges. Because of the conclusion ultimately reached by the primary judge, it was not necessary for his Honour further to explore either that proposition or what might be its ramifications in the event that he decided that Mr Newman should be surrendered only in respect of some of the offences charged. It is though necessary for us to consider that proposition and those ramifications because of our conclusion that not all of the charges are representative.

48    If the consequence of ordering Mr Newman’s surrender to New Zealand only in respect of the non-representative charges would be that, on his arrival there, it would nonetheless be permissible for him to face all of the charges specified in the warrant, it must follow that it would be unjust, oppressive or too severe a punishment to order his surrender at all. Any other conclusion would be subversive of the Australian standard that representative charges are “clearly objectionable”.

49    Part III of the Act does not require that the magistrate or, on review, a court be satisfied that New Zealand has given a speciality assurance that the extraditable person will, if surrendered, only face charges in respect of which Australia has surrendered that person. Further, no such assurance has ever been volunteered by New Zealand in relation to Mr Newman. The position in New Zealand would seem to be as the primary judge apprehended. Mr Newman could be detained and tried there in respect of any offence to which the request for his surrender related or any offence carrying the same or a lesser maximum penalty of which he could be convicted upon proof of the facts upon which that request was based: s 64(1) Extradition Act 1999 (NZ) (Extradition Act NZ). New Zealand’s request included the representative charges.

50    Neither party addressed what might be the ramifications, so far as whether surrender ought to be ordered, of some only of the charges being representative or, for that matter, whether, under New Zealand’s Extradition Act, further offences might indeed permissibly be charged in a representative way. Nor, before the hearing was adjourned, was New Zealand afforded the opportunity in light of this to consider whether it could or should give a speciality undertaking that no representative charges would be brought even if that were otherwise permissible under New Zealand law. For these reasons, we extended to the parties an opportunity to make further submissions on these subjects.

51    Each party took up the opportunity extended.

52    Mr Newman’s submissions were cast in the alternative. His first alternative was that it was “by no means clear” that it was possible to surrender him only in respect of some of a number of offences specified in the one warrant. This uncertainty was said to follow from reading s 34, s 38 and the form of surrender warrant (Form 21) prescribed in the Extradition Regulations 1988 (Cth) together. So read, it was submitted that the surrender warrant was only responsive to an indorsed New Zealand warrant with no requirement for the identification of particular charges, as opposed to the indorsed New Zealand warrant, being necessary in the surrender warrant.

53    As to this, New Zealand’s initial submission in response to the Court’s invitation put it that surrender in respect of some of the offences specified in a New Zealand warrant was possible. However, having had the benefit of considering Mr Newman’s submission, New Zealand made a submission in reply in which it was conceded that there “seemed to be force” in his submission that surrender in respect some only of the offences charged was not possible.

54    It is convenient to resolve the point raised this first alternative before detailing the alternative submission which Mr Newman made in response to the court’s invitation.

55    As we already have observed, as a matter of construction, s 34(2) of the Extradition Act directs attention to “the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued”. The equivalent description in s 33A in respect of a consent to surrender is “an offence for which the indorsed warrant has been obtained”. That a surrender might be in respect of but one of the multiple charges to which a New Zealand warrant relates is made clearer in s 33A by the use of the indefinite article in the description in that section. Nonetheless, so far as s 34(2) is concerned, there is no reason not to regard a disjunctive singular and plural as being incorporated in that reference to “the offence”. So construing s 34(2) gives it an operation which is harmonious with s 33A.

56    Of course s 34 must not be read in isolation from, materially, s 38 but so doing serves only to conform the centrality of s 34(2) in both the initial proceeding before a magistrate and in any review under s 35 of the magistrate’s decision by a judge. In contrast, the role of s 38 is to specify what is authorised by any surrender warrant which results either a consent under s 33A or from contested proceedings under s 34 or s 35 and to authorise the prescription of a form of surrender warrant.

57    Form 21 proceeds on the footing that the charges concerned are specified in the indorsed New Zealand warrant. It appears not to have occurred to the author of the form that the result of a s 34 or s 35 proceeding might be that a court might permissibly be satisfied by a person that surrender ought to occur in respect of some only of the charges specified in the indorsed New Zealand warrant. Mr Newman pointed out that the form (Form 13) of a warrant issued by the Attorney under Pt II of the Extradition Act is markedly different. This is true. That form of warrant expressly requires express reference to the offences concerned. That the Form 21 is not cast in a way which admits of an alternative outcome whereby surrender in respect of some only of the offences charged in the New Zealand warrant is authorised is of no moment. Forms in subordinate legislation cannot dictate the meaning to be given to s 34(2) and to s 35.

58    Mr Newman’s alternative submission was that, even if surrender in respect of but some of the offences charged in the New Zealand warrant were authorised, that would not prevent New Zealand, on his arrival there, from charging him with representative charges. He referred to s 64(1) Extradition Act NZ, the effect of which we have set out already. He also submitted that the principles of speciality do not apply in respect of an extradition from Australia to New Zealand. Mr Newman submitted that the possibility that this might occur was not remote as the laying such charges in New Zealand was acknowledged in the courts there to be “not uncommon”: R v Qui [2008] 1 NZLR 1 at [8] or a “practice”: R v Accused at 389.

59    In response, New Zealand submitted that normal principles of speciality did not apply in relation to an extradition from Australia to it. It further submitted that even though this Court did not order Mr Newman’s surrender in respect of particular charges specified in the New Zealand warrant because they were representative, this would not prevent a prosecuting authority there from proceeding on such charges once he arrived in New Zealand.

60    No undertaking was given by New Zealand that such charges would not be brought or (if it is any different) that Mr Newman would be brought to trial only in respect of offences in respect of which his surrender by Australia had occurred. When coupled with New Zealand’s submission that it would be permissible to lay representative charges against Mr Newman after his arrival there, the possibility that this might occur is real, not remote.

61    Speciality does not apply in respect of the surrender of an extraditable person by New Zealand to Australia: s 42. Part III of the Extradition Act does impose on New Zealand any obligation to provide any kind of speciality assurance to Australia before the surrender of a person in respect of any offence may be ordered. There is nothing though in Pt III which would prevent the giving of such an assurance by New Zealand in a particular case in respect of certain offences charged in a warrant. Here, it has not done so. Instead, a submission already made in chief was repeated, which was that, were such charges to be brought, Mr Newman could challenge that eventuality in the New Zealand courts, which were presumed to be fair. We have already rejected that submission. To accept it would be to countenance a surrender to a jurisdiction where it is regarded as permissible to bring a representative charge, a practice which is anathema in Australia.

62    It follows therefore that the position is indeed as put conditionally above. Because it would be permissible in New Zealand, if Mr Newman is surrendered, for him to face all of the charges specified in the warrant, it must follow that it would be unjust, oppressive or too severe a punishment to order his surrender at all. The appeal must therefore be allowed.

Associate:

Dated:    13 September 2012