FEDERAL COURT OF AUSTRALIA

Nakane v New Zealand [2014] FCAFC 153

THE COURT ORDERS THAT:

1.    The appeal is dismissed, with costs.

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

REASONS FOR JUDGMENT

THE COURT

1    This appeal is from the judgment of Nicholas J given on 25 July 2014: Nakane v New Zealand [2014] FCA 772.

2    As Nicholas J stated at [1] of that judgment, the appellant was the subject of orders made by a Magistrate of the State of New South Wales on 7 March 2014 under s 34(1) of the Extradition Act 1988 (Cth) (the Act) requiring that he be surrendered to New Zealand and a further order that, pending surrender, he be committed to prison. Mr Nakane applied to this Court for a review of these orders pursuant to s 35 of the Act.

3    The general findings made by Nicholas J were, at [16]–[17], that Mr Nakane, who was then known as Robert Boyd, was charged in New Zealand on 6 August 2011 with a number of offences under the Crimes Act 1961 (NZ). These offences included one count of sexual violation by rape contrary to s 128(1)(a) and four counts of sexual conduct with a girl under 12 contrary to s 132(3). He was also charged on two other counts of assault, one under s 202C(A), and another under s 196. The offences with which Mr Nakane had been charged were alleged to have been committed by him at Rotomanu between January and August 2011. Mr Nakane was due to stand trial on 28 January 2013. On 24 January 2013, while on conditional bail, he left New Zealand for Australia.

4    As Nicholas J said, the Full Court in New Zealand v Johnston (2011) 274 ALR 509 observed at [18] that the objects of the Act make clear that Australian courts that are called upon to determine extradition proceedings are not to determine the guilt or innocence of the accused.

5    The orders made by Nicholas J were as follows:

1.    The order made by Magistrate Andrews on 7 March 2014 that Robert Nakane … be surrendered to New Zealand is confirmed.

2.    The proceeding is otherwise dismissed.

3.    The applicant is to pay the respondent’s costs.

6    The grounds of appeal set out in the notice of appeal filed on 11 August 2014 may be summarised as follows:

1.    The primary judge made an inaccurate finding in that he thought that the appellant was suggesting that if he was to be surrendered back to New Zealand he would be subjected to psychological torture after parting from the gang scene back in New Zealand. Where the primary judge erred was that the appellant was instructing the Court that he has already been subjected to and is still currently suffering from New Zealand prison system psychological torture.

2.    To surrender the appellant back to New Zealand where he has been subjected to psychological torture already within the prison system and is still currently suffering from psychological torture would not only be a gross miscarriage of justice but would go against article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

3.    The appellant has been in custody since May 2013 and is not able to receive redress and rehabilitation let alone able to access supportive networks within the prison system in Australia due to lack of resources and funding for a person suffering from psychological torture.

4.    Holding the appellant within a prison system in isolation with insufficient medical expertise to help with his medical condition of suffering psychological torture will be subjecting him to more torture and trauma on the victim (the appellant).

Reference was made to article 5 of the Universal Declaration of Human Rights; article 7 of the International Covenant on Civil and Political Rights and articles 10(1), 14(1) and 16(2) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

7    The orders sought in the notice of appeal are as follows:

1.     That the federal court rekconises that the appellant fled New Zealand after being subjected to “Psychological Torture” within the New Zealand prison system and is still currently suffering from this tramatic condition.

2.     That the Surrender Warrant be quashed (removed) and the Appellant be released from prison custody and held at the villawood detention centre where he could be offered proffesional supportive networks to deal with being “Psychologically Tortured” from New Zealand prison system. The Appellant would then be able to be offered “Redress and Rehabilitation” with a referral to the “STARTTS” centre, which is “Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (NSW)”

3.     For the Federal court of NSW to uphold it’s lawfull obligations as a state of Australia with regards to Article 5 of “the Universal Declaration of Human Rights”.

Allso, Article 7 of “The International Covenant on civil and Political Rights” as well as Article 3 of the “convention against torture and other Cruel, Inhuman or degrading Treatment or punishment”.

And most importantly Article 14(1) of the “convention against torture and other Cruel, Inhuman or degrading treatment or punishment.”

8    Section 35 of the Act relevantly provides:

35  Review of magistrate’s or Judge’s order

(1)    Where a magistrate or eligible Federal Circuit Court Judge makes an order under section 34 in relation to a person:

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

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

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

(2)    The Federal Court may, by order:

(a)    confirm the order of the magistrate or Judge; or

(b)    quash the order of the magistrate or Judge and direct a magistrate or eligible Federal Circuit Court Judge to:

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

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

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

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

(5)    …

(6)    Where the person or New Zealand:

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

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

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

the following provisions have effect:

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

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

…

9    The appellant did not file written submissions but made oral submissions to the Court in support of his grounds of appeal. The respondent filed written submissions and also made short oral submissions on the hearing of the appeal.

10    Turning to the substance of the grounds of appeal, first, Nicholas J held that the appellant’s references to psychological torture found no support in the evidence: see the judgment at [26]–[27]. The primary judge said that the appellant’s affidavit evidence did not rise above mere assertion without any elaboration which might help to explain whether he genuinely held the fears he claimed to hold, why he held them, and whether any such fears, if genuinely held, had any reasonable foundation. In our opinion there is no substance in the ground or grounds of appeal founded on psychological torture. The absence of evidence applies to the entirety of the appellant’s imprisonment in New Zealand, whether in the past or in the future. Further, in our view, Nicholas J did not err in focusing on the future in light of the terms of s 34(2) of the Act.

11    Second, in our opinion the appellant’s claims that he is not being provided with the appropriate medical treatment in the custody of Corrective Services NSW or his more general complaint as to his treatment in prison in Australia do not show error on the part of the primary judge.

12    Third, it does not appear that the appellant sought to establish error on the part of the primary judge in relation to any of the other matters referred to in s 34(2) of the Act.

13    In relation to the claim that the Court should order that the appellant be released from prison custody and held at the Villawood detention centre, we see no basis in the facts for making that order, assuming in the appellant’s favour that the Court on this appeal had the power to make such an order.

14    For these reasons, the appeal should be dismissed, with costs.

Associate:

Dated:    21 November 2014