Federal Court of Australia

Coates-Kelly v New Zealand [2022] FCAFC 131

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 22 February 2022 is dismissed.

2.    The appeal is dismissed.

3.    The appellant is to pay the costs of the first respondent to be agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The s 39B application is dismissed.

2.    The applicant is to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Rae Coates-Kelly is an Australian citizen, who between approximately January 2007 and March 2015, practised as a barrister in New Zealand. During that time she was charged with, and convicted of, numerous offences against the Tax Administration Act 1994 (NZ) (NZ Tax Act). Before her trial date, Ms Coates-Kelly left New Zealand to travel to Australia, and failed to return to attend her trial, in breach of her bail agreement and her undertaking to the Dunedin District Court to do so. She was tried for these offences in absentia. A warrant was issued in New Zealand for her arrest.

2    This appeal and the related applications are directed to the extradition proceedings to surrender Ms Coates-Kelly to New Zealand.

3    Given the arguments raised, and the various applications, it is necessary to first record the history of the proceedings in more detail.

Procedural history

4    Ms Coates-Kelly was the sole director and shareholder of Kelly Chambers Limited (KCL), an incorporated entity though which she practiced as a barrister. Ms Coates-Kelly had exclusive control of KCL’s finances. KCL registered for Goods and Services Tax (GST) and was required to file GST returns from December 2010. From March 2011, KCL traded and charged GST to clients; however, it did not file GST returns nor remit GST to the NZ Commissioner for Inland Revenue (Commissioner).

5    From 31 March 2011 to 31 July 2013, KCL failed to remit over $122,000 in GST to the Commissioner. Further, from June 2011 to December 2013, KCL deducted tax from salary payments made to its employees but failed to remit these funds to the Commissioner. In that period, the amount of tax that KCL deducted but failed to remit was almost $61,000.

6    On 22 September 2014, Ms Coates-Kelly was charged by New Zealand’s Inland Revenue Department with a number of criminal offences under the NZ Tax Act. They were: 31 offences of aiding and abetting KCL to knowingly apply tax deductions for a purpose other than payment to the Commissioner, contrary to ss 143A(1)(d) and 148 of the NZ Tax Act, and 15 offences of aiding and abetting KCL to knowingly not furnish GST returns to the Commissioner when required to do so, with the intention of evading the assessment or payment of tax under law, contrary to ss 143B(1)(b) and (f), and 148 of the NZ Tax Act.

7    Ms Coates-Kelly first appeared in relation to the charges on 4 November 2014 and was granted bail, which was unopposed.

8    On 27 February 2015, Judge Crosbie of the Dunedin District Court imposed a condition on Ms Coates-Kelly’s bail that she reside at a specified address in Dunedin, New Zealand.

9    Prior to 1 May 2015, Ms Coates-Kelly’s trial was set down for hearing on 14 September 2015.

10    In May 2015, Ms Coates-Kelly sought variation of her bail conditions to enable her to travel to Australia. The conditions were varied accordingly, and prior to her trial (sometime before 10 September 2015), she travelled to Australia.

11    A few days before her trial was set to commence, on 10 September 2015, Ms Coates-Kelly sent an email to the Dunedin District Court advising that her mental health had deteriorated, which she said meant that she would be unable to attend her trial scheduled to commence on 14 September 2015 at the Dunedin District Court. Ms Coates-Kelly did not appear at her trial.

12    At the trial, the judge, Judge Kellar, did not accept Ms Coates-Kelly’s explanations for her failure to appear, determined that it was not contrary to the interests of justice to proceed, and pursuant to s 125 of the Criminal Procedure Act 2011 (NZ), proceeded in Ms Coates-Kelly’s absence to hear and determine the charges. His Honour published a minute of his reasons for proceeding in her absence, which were as follows:

[1]    Ms Kelly is charged with a significant number of offences under the Tax Administration Act 1994. She does not appear on 10 September 2015 she sent to the Court an email, the contents of which we will return to in a moment.

[2]    The matter has had something of a protracted history, to circumvent the matter, I refer by reference to Judge Crosbie’s minutes of 19 and 27 February and 6 March 2015 respectively. As to the latter of those minutes, the Judge directed that the setting down of trial be reviewed on 28 July at 9.00 am. Ms Kelly signed a bail bond to appear as at that date.

[3]    She has had various counsel throughout the course of the prosecution, most of whom have had only limited instructions. Due to the inability of her most recent counsel to obtain meaningful instructions that counsel sought and was granted leave to withdraw. Since then, Ms Kelly has been incommunicado until the email of 10 September 2015.

[4]    The Court has endeavoured to make contact with Ms Kelly through her known email address one of which was returned, but one of which until 10 September elicited no response.

[5]    On 28 August 2015 at my direction the registrar sent to Ms Kelly an email asking her to contact the Court urgently in relation to the trial of today. Nothing was heard until her email of 10 September.

[6]    Under s 122 Criminal Procedure Act 2011 the Court may proceed in the absence of the defendant in certain circumstances. Those circumstances exist. She is charged with category 3 offences, she is required to be present. The prosecutor, the form of Mr Tasker has attended. Ms Kelly does not.

[7]    I must be satisfied that Ms Kelly has no reasonable excuse for her non-attendance. Her email the contents of which I will not go into in detail, but as a matter of Court record refers to a moderate to severe anxiety disorder. Nothing to which she refers in the email supported by any independent information. She states however, that she has had help even to write the email and has not had an opportunity of obtaining information to support the contents of it. That simply defies belief.

[8]    Ms Kelly has had months to provide information as to her reasons for non-attendance. Indeed, her email of 10 September 2015 does not seek an adjournment of the trial, it simply explains or endeavours to, why she has failed to appear.

[9]    I must consider the matters in s 121 subs (4) Criminal Procedure Act. I have had regard to her stated reasons for her absence.

[10]    Throughout the course of management of the trial, Ms Kelly either herself or through her counsel has not judicated any matters that are in dispute. If I was to adjourn the trial, the trial would be some time away. There are a large number of witnesses and a significant number of exhibits. It would be a great inconvenience to those witnesses for the matter not to proceed.

[11]    The charges are relatively serious. Some of them carry a maximum penalty of five years’ imprisonment and/or a fine of $50,000. It is not therefore contrary to the interests of justice to proceed, therefore the trial will proceed in Ms Kelly’s absence.

13    At the conclusion of the trial, Judge Kellar convicted Ms Coates-Kelly of the 46 charges brought by the Commissioner.

14    Ms Coates-Kelly’s sentencing was set down for 14 October 2015. Ms Coates-Kelly failed to appear for sentencing, and Judge Kellar issued a warrant for Ms Coates-Kelly’s arrest (2015 warrant). The 2015 warrant recorded that Ms Coates-Kelly had been convicted of 46 offences on 22 September 2014, with those offences being 9 charges under s 143 of the NZ Tax Act, 22 charges under s 143A of the NZ Tax Act and 15 charges under s 143B of the NZ Tax Act.

15    Having identified errors in the 2015 warrant, on 26 March 2019, the New Zealand Department of Inland Revenue wrote to the Dunedin District Court requesting that the 2015 warrant be reissued to correct the errors in the warrant. As a result, on 29 March 2019, Judge Crosbie of the Dunedin District Court withdrew the 2015 warrant and issued a new warrant (2019 warrant).

16    On 27 February 2020, Federal Agent James Dalton of the Australian Federal Police applied to Magistrate Bazzani of the Magistrates’ Court in Melbourne to indorse the 2019 warrant under s 28 of the Extradition Act 1988 (Cth). On 28 February 2020, Magistrate Bazzani indorsed the 2019 warrant (indorsed warrant) under s 28, authorising execution of the warrant in Australia. On 20 June 2021, the Indorsed warrant was executed through the arrest of Ms Coates-Kelly.

17    After her arrest, Ms Coates-Kelly applied for bail, which was denied. She was remanded in custody. Ms Coates-Kelly then requested that surrender proceedings be conducted under s 34 of the Extradition Act (s 34 hearing). The proceedings were conducted, and on 30 August 2021, Magistrate Bourke of the Magistrates’ Court in Melbourne ordered the surrender of Ms Coates-Kelly pursuant to s 34(1) of the Extradition Act.

18    On 13 September 2021, Ms Coates-Kelly applied to the Federal Court, pursuant to s 35 of the Extradition Act, seeking a review of the surrender warrant ordered by Magistrate Bourke (review hearing). On 19 November 2021, the primary judge in the Federal Court dismissed that application.

19    By notice of appeal dated 3 December 2021, Ms Coates-Kelly appeals from the decision of the primary judge (appeal).

20    By an interlocutory application dated 22 February 2022 filed in the appeal proceedings, Ms Coates-Kelly applies for leave to withdraw certain admissions made in the hearing before the primary judge and in the hearing before the magistrate (application to withdraw admissions).

21    By an originating application dated 15 March 2022 and filed as action VID 127/2022, Ms Coates-Kelly also seeks review in the original jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) of the decision made by Magistrate Bazzani on 27 February 2020 under s 28 of the Extradition Act to indorse a New Zealand warrant in respect of Ms Coates-Kelly (s 39B application). This application has been directed pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) to be heard by the Full Court.

22    All proceedings were heard together.

23    The nature of each proceeding is significant as it affects the material before the Court, the nature of the arguments that can be raised and the relief that can be obtained. That said, there are common arguments between the proceedings, though the different nature of the proceedings can impact the outcome. In particular, central to Ms Coates-Kelly’s submission in both the appeal and the s 39B proceedings is the meaning of the phrase “New Zealand warrant” in s 5 of the Extradition Act.

Statutory scheme

24    Before addressing the arguments raised by Ms Coates-Kelly in these proceedings it is appropriate to first outline the statutory scheme in the Extradition Act, which sets out the procedure and governs the process of making an application to extradite a person from Australia to New Zealand. It is trite to observe that it is in the context of the statutory scheme which the interlocutory application, the appeal and the claim in the original jurisdiction must be addressed.

25    In New Zealand v Moloney [2006] FCAFC 143; (2006) 154 FCR 250 (Moloney), a five member bench of this Court considered the operation of the statutory scheme.

26    In summary, as explained in Moloney at [2]-[3], Part III of the Extradition Act makes specific provision for extradition from Australia to New Zealand. The process is analogous to extradition within Australia whereby all that is required is the production of an indorsed warrant. Section 28 of the Extradition 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. Hence, there is no need for New Zealand to produce any evidence in support of its application. This procedure is often referred to as a “backing of warrants” procedure. The history and effect of the procedure is succinctly summarised in Moloney at [17]-[23].

27    Nonetheless, s 34(2) 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. Section 34 is in the following terms:

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 or eligible Judge by or on behalf of the person or New Zealand for proceedings to be conducted under this section;

the magistrate or Judge shall, unless the magistrate or Judge 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 or Judge 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 or Judge shall order that the person be released.

(3)    The magistrate or Judge 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 or Judge 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    As is apparent, the magistrate cannot receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence: s 34(4).

29    As recognised in Moloney at [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.”

30    It is clear from the statutory scheme that the procedure to extradite a person to New Zealand in Pt III is much more straightforward and less onerous than extradition to other foreign states, which is addressed in Pt II of the Extradition Act. Most obviously, for extradition to New Zealand, there is not even a need for the requesting country to provide “supporting documents” of the type required for extradition to other foreign states: cf s 19(2) and (3). Unlike the position in relation to some other countries, New Zealand is not required to provide prima facie evidence of guilt: Moloney at [28]. The process of extradition to New Zealand does not contain a speciality requirement or assurance which applies to Pt II extraditions, which limits the offences with which a person can be dealt with on return to a requesting country: cf s 22, 24 and 42. Further, none of the various extradition objections set out in s 7 of the Extradition Act applies to the process for extradition to New Zealand. Therefore, a person cannot resist extradition on the basis that: 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).

31    The only statutory bar to extradition to New Zealand is found in s 34(2): Moloney at [30], [38].

32    The Court in Moloney concluded at [36]-[37]:

[36]    …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.

33    A finding of injustice is not made lightly: Moloney at [35]. The expression “unjust” is directed primarily to the risk of prejudice to the person in the conduct of the trial, and “oppressive” is directed to hardship to the accused resulting from changes in the person’s circumstances: Moloney at [65]-[66].

34    A review of a magistrate’s decision is to this Court in its original jurisdiction, which is conducted by way of rehearing: s 35(1) of the Extradition Act, and see s 35(6)(d). If a person, or New Zealand, wishes to appeal from the order made as a result of the review, they can appeal to the Full Court: s 35(3). In conducting that appeal, the Court “to which the appeal is made shall have regard only to the material before the court that conducted the review”: s 35(6)(e).

These proceedings

35    Against that background, it is appropriate to first address the interlocutory application in the appeal to withdraw the admissions, before turning to the appeal itself and the s 39B application.

Application to withdraw admissions

36    Ms Coates-Kelly applies for leave to withdraw admissions, pursuant to rr 26.11 or 1.32 of the Federal Court Rules 2011 (Rules).

37    The admissions sought to be withdrawn are described as having the effect of her being “charged and convicted of offences against ss 143A and 143B of the NZ Tax Act as stipulated in the warrant relied upon by NZ, issued on 19/3/19 and indorsed on 28/2/20”. In summary, Ms Coates-Kelly contends that the admissions were not true, as she was never charged or convicted of any offences against either s 143A or s 143B but rather, she was charged and convicted of offences only against s 148. She contends that the circumstances in which the admissions were made justify leave being granted.

38    In support of her application Ms Coates-Kelly read the following affidavits:

(1)    an affidavit of Rae Coates-Kelly affirmed 30 March 2022;

(2)    an affidavit of Joel Kent McComber affirmed 30 March 2022; and

(3)    an affidavit of Hayden Rattray affirmed 4 April 2022.

39    Each was admitted subject to a limitation being applied to certain passages, confining their use to reflecting the deponent’s state of mind (rather than illustrating the correctness of any legal view expressed therein).

40    In that context, it is necessary to consider the terms of the admissions by Ms Coates-Kelly, as recorded in her written submissions to the primary judge. They were threefold: first, that she was convicted of offences against the law of New Zealand; second, that she was convicted of the 15 charges identified in the warrant by the Code 9375 under s 143B of the NZ Tax Act; and third, that she was convicted of 31 offences against s 143A(1)(d) of the NZ Tax Act. Despite Ms Coates-Kelly’s application relating to all of those admissions, during the hearing she accepted that even on her argument, there is no basis to challenge the making of the first of those admissions, as it is in fact correct. Accordingly, the admission that she has been convicted of offences against the law of New Zealand must stand.

41    Although this application relates to admissions made before both the primary judge and the magistrate in the s 34 hearing, given the stage of these proceedings, practically speaking, it can only be the admissions made before the primary judge which are significant, as that hearing was by way of rehearing. It can be accepted that the admissions were relied upon by the primary judge: primary judgment at [64].

42    The court has a discretion whether to grant leave to withdraw admissions, although it is recognised that leave is not freely granted, especially when the application for leave is made in an appeal: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309 (Jeans) at [18]. The court will be less inclined to permit withdrawal of an admission where the applicant, in doing so, seeks to advance an argument on appeal which was not advanced below, which is not confined to a pure question of law: Ascic v Comcare [2020] FCAFC 105 at [83]. Admissions made after deliberate consideration and a full opportunity to consider whether they should be made should not ordinarily be withdrawn: Jeans at [18]. Other factors informing the court’s discretion include: the strength of the case now advanced; that the admission is or may well be incorrect; any delay in making the application to withdraw the admission; the significance of the admission to the respective cases of the parties; prejudice to Ms Coates-Kelly if the admission is not withdrawn and to the respondent if it is; and case management principles: see for example, Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc [2019] FCA 526 (Juno) at [38]; Rochecouste v Tasman Rope Access Pty Ltd (No 2) [2021] FCA 1161 at [16]. The overriding consideration in determining whether to grant leave to withdraw an admission is the interests of justice: see Juno, where Besanko J summarised the relevant principles at [38].

43    Relevant also to an application for leave to withdraw admissions when sought at the appeal stage of proceedings are the principles governing raising on appeal fresh points not advanced below: Warner-Lambert Company LLC v Apotex Pty Limited (No 2) [2018] FCAFC 26 at [181] citing Coulton v Holcombe (1986) 162 CLR 1 at 9. As the respondent correctly contended, those principles apply with particular force here, because the Full Court cannot receive further evidence: s 35(6)(e) of the Extradition Act.

44    Against that background, and relying on her evidence in support of the application, Ms Coates-Kelly made the following submissions. She submitted that the admissions were made at a time when she was in custody and without access to the relevant charging documents and summonses. It was submitted that the respondent’s counsel also conducted proceedings on the same basis that Ms Coates-Kelly had indeed been charged and convicted under ss 143A and 143B, a basis she assumed to be true and which the respondent did not correct. It was submitted that Ms Coates-Kelly requested the charging documents from the respondent, but that request was refused. In that context it was submitted that she was under a disability at the time, also being in custody. The admissions were also made by then counsel in the Concise Statement and the admissions were made without having the charging documents or Ms Coates-Kelly’s approval, although they were consistent with her then mistaken understanding of the provisions under which she had been charged and convicted. Counsel did not take up Ms Coates-Kelly’s request to pursue disclosure of key documents. It was submitted at the time, that neither counsel nor Ms Coates-Kelly appreciated the true position relating to s 148 of the NZ Act and neither would have made the admissions if they had realised the point earlier. Then counsel did not advise Ms Coates-Kelly of the true position as to s 148. The true position was first understood by new counsel, and confirmed by the subsequent locating of some of the relevant charging and related documents which show the admissions were mistaken.

45    Ms Coates-Kelly submitted that the admissions were mistaken both in fact and law. It was submitted that the admissions are now known to be incorrect. The respondent’s conduct, even though in good faith, contributed to the making of the admissions. No adverse inference arises from Ms Coates-Kelly’s conduct. It was submitted that she is prejudiced by being held to mistaken admissions, whereas the respondent suffers no prejudice if the admissions are withdrawn and the case proceeds on its true facts and correct legal footing. It was submitted that that result would have no impact on the case management of these proceedings. In the circumstances, it was argued that the interests of justice require the admissions be withdrawn.

46    The respondent contended that Ms Coates-Kelly has not demonstrated sufficient reason for leave to be given to withdraw her admissions. It submitted that the application is made in an appeal and one where further evidence is not permitted: s 35(6)(e)) of the Extradition Act; that it goes to a question of fact, not a question of law; that the correctness of Ms Coates-Kelly’s current position is questionable at best and although it is a question of fact, the better view is that s 148 of the NZ Tax Act does not create a distinct offence; and Ms Coates-Kelly’s position before the primary judge was based on a considered opinion of her then counsel. Although it did not occur to her then counsel that she might have been convicted of offences against s 148 of the NZ Tax Act, it was apparent on the materials provided to her that she had been convicted of aiding and abetting, not as a principal. The respondent accepted that the issue is significant to how Ms Coates-Kelly puts her case now but submitted that even if she were correct about the effect of s 148 of the NZ Act, she would still need to overcome several major hurdles to succeed on the appeal – Australian courts do not rule on the validity of New Zealand warrants (and ss 28 and 34 of the Extradition Act do not require a warrant to specify the relevant offence), and s 34 operates on the historical fact of arrest pursuant to an indorsed New Zealand warrant: primary judgment at [66]-[67]. Further, it should be noted that even under NZ law, a charging document or warrant is not invalid because of a defect or irregularity unless a court is satisfied that there has been a miscarriage of justice. It was submitted that, accordingly, the significance of the admission (however assessed) is comfortably outweighed by the other factors set out above against granting leave.

Consideration

47    The respondent’s submission is to be accepted.

48    First, the premise of Ms Coates-Kelly’s application, that the admissions made are incorrect, is based on the content of New Zealand law, which is a matter of fact not law: Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625 at [22]; Attorney-General of New Zealand v Ortiz [1984] AC 1 at 45; and see, as to proof of such law, ss 174 and 175 of the Evidence Act 1995 (Cth). Ms Coates-Kelly contended that she was only convicted of offences under s 148 of the NZ Tax Act, which relates to aiding and abetting a principal offence. It is accepted that the principal offences are under ss 143A and 143B. Ms Coates-Kelly contends that s 148 creates a discrete offence, quite separate from the principal offences, and therefore it is the only offence for which she could be convicted. The respondents take issue with that contention. Whether Ms Coates-Kelly’s submission is correct is, on her case, dependent on the construction of the New Zealand statute. It is noted that in Australian law, a person who aids and abets the commission of an offence is taken to have committed that offence, and that aiding and abetting is not itself a distinct offence: see for example, Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 at [6]. As this issue has been raised for the first time at this stage of the proceedings, being after the s 35 review, the respondent has been deprived of the opportunity to present evidence on the content of New Zealand law on this topic before the primary judge. This demonstrates or reflects on the consequence of raising this matter for the first time at this stage of proceedings. Accordingly, Ms Coates-Kelly’s submission that there is no prejudice occasioned to the respondent by the withdrawal of the admission cannot be accepted.

49    Ms Coates-Kelly eventually conceded that she was asking this Court to resolve a legal dispute between the parties as to the correct construction of s 148 (and what flows from the construction), but claimed Ms Coates-Kelly that the legal dispute only arises because of the manner in which New Zealand challenged her application. That submission does not assist Ms Coates-Kelly as it cannot overcome the limitations on this Court’s ability to consider the issue, which arises, at least in part, because of the timing of this application. In any event, the submission directing blame at the respondent for this state of affairs cannot be accepted. The respondent is not, as implied by Ms Coates-Kelly, required to accept the correctness of the submissions made. Further, at the very least, a consideration of the provision reflects that an argument challenging the correctness of Ms Coates-Kelly’s assertion exists: and see Evans v Commissioner of Inland Revenue [2009] NZCA 251 at [27]. In the circumstances, it is neither appropriate nor necessary to resolve the issue. It follows, that no assistance is gained from Ms Coates-Kelly referring to authority (Nayackalou v R [2012] NZCA 33) which she says is contrary to that relied on by the respondent. Rather, that simply serves to illustrate that the issue is one of controversy.

50    Second, in that context, it is to be recalled that an appeal is to be determined on the basis of the material before the primary judge: s 35(6)(e)) of the Extradition Act. As no additional material can be admitted on the appeal, the consequence of Ms Coates-Kelly’s application, taken at its highest, is that the appeal would proceed without the admissions. Ms Coates-Kelly’s submission is still dependent on an interpretation of New Zealand law, which, as explained above, is a contested issue, is a matter of fact and is a matter about which no evidence was presented before the primary judge. Ms Coates-Kelly is seeking to advance an argument on appeal not raised below.

51    In so far as this application is said to also relate to the s 39B application, the additional evidence which would be sought to be relied on, which founds this application, was not before the magistrate, and as such, even if the application succeeded (putting aside any issue of jurisdictional fact), the evidence would not be relevant to those judicial review proceedings: Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31 at [40]; Bertran v Vanstone (2000) 61 ALD 400 at [106]; Minister for Immigration v Tesic (2017) 251 FCR 23 at [48]-[55]. As explained below, it is not a jurisdictional fact for the s 28 decision whether or not the applicant had in fact been convicted of the offences set out in the warrant. In any event, we observe that the applicant has not sought to lead any evidence in that proceeding, as to the construction of s 148, to support her contention that the offence in s 148 is a stand-alone offence.

52    Third, Ms Coates-Kelly’s position in making those admissions was deliberate: Certain Underwriters at Lloyd's v Aquagenics Pty Ltd (in liq) [2018] FCAFC 9; (2018) 352 ALR 131 at [27]. It was informed by legal advice. There is no basis to contend that what occurred was contrary to instructions. The material provided to Ms Coates-Kelly made abundantly clear that she had been convicted of aiding and abetting offences, and Ms Coates-Kelly’s then counsel was and is a trained New Zealand lawyer. The material provided also included a copy of the relevant statutory provisions, including s 148. The affidavit of then counsel says during the time he was retained and based on his review of the material and instructions, he formed the belief and opinion that Ms Coates-Kelly had been charged and convicted of offences under ss 143A and 143B of the NZ Tax Act. That is not a surprising belief, given the secondary nature of liability for offending committed by way of aiding and abetting a principal offender. The change of position has only come about by a different view being taken by Ms Coates-Kelly’s now counsel.

53    In any event, the charging documents which appear to underpin this application do not, on their face, necessarily or incontrovertibly support Ms Coates-Kelly’s position. For example, they refer to ss 148 and 143A/143B of the NZ Tax Act, with the documents noting the relevant legislative references being “[s]ections 148 and 143A(1)(d) of the [NZ Tax Act]”. It is not evident from the documents that s 148 is necessarily a distinct offence in the way Ms Coates-Kelly contends.

54    Fourth, Ms Coates-Kelly’s submission that she was under some disability at the time she made the admissions cannot be accepted. She is a trained lawyer. The evidence establishes that her then counsel made a deliberate forensic decision, prior to the review, not to seek production of documents from New Zealand (including the charging documents). In any event, as noted above, the fact that Ms Coates-Kelly was convicted of the offences as aiding and abetting their commission, and not as a principal, is apparent from the extradition documents that were provided to her from the outset. As the respondent correctly submitted, in the appeal, Ms Coates-Kelly makes the same arguments from those existing documents.

55    For completeness, we note that in so far as Ms Coates-Kelly submitted that she had been denied the documents when she made a request in the Magistrates’ Court, Ms Coates-Kelly’s request at that time was for all documents in the possession of the New Zealand prosecuting authorities relating to her prosecution, not just the charging documents. Given the nature of the proceedings, she had no entitlement to all such documents. In any event, that time had passed as the review pursuant to s 35 is as a rehearing, and Ms Coates-Kelly could have, but made a decision not to, seek the documents at that stage. Ms Coates-Kelly was represented.

56    Fifth, and importantly, the consequence of the withdrawal of the admissions does not have the significance contended for by Ms Coates-Kelly. This application is said to be relevant to the submission as to whether the warrant which was indorsed is a New Zealand warrant. As already explained, Australian courts do not rule on the validity of New Zealand warrants, the Extradition Act does not require the warrant to specify an offence (see ss 28 and 34), and the extradition proceedings proceed on the backing of the warrant.

57    Related to that, and for the reasons below, no part of the definition of “New Zealand warrant” requires the Court to determine, as a jurisdictional fact, what offences the person has been charged with or convicted of. Moreover, as referred to above, Ms Coates-Kelly’s admission before the primary judge that she has been convicted of offences against New Zealand law is not, and cannot, be challenged.

58    That Australian courts are not required to determine what offences the person has been charged with or convicted of affects Ms Coates-Kelly’s argument on this application, both as it relates to the appeal, and to the s 39B proceedings. Further, in relation to the s 39B proceedings, an additional problem arises in relation to the contended significance of the withdrawal, which is that Ms Coates-Kelly is now being held on a surrender warrant, not the indorsed warrant (which is the subject of the s 39B proceeding).

59    In all those circumstances, leave to withdraw the admissions is refused.

Appeal

60    There is significant overlap in the grounds of appeal. In some respects, the grounds represent cascading alternative arguments, primarily premised on the same underlying submission. For convenience, we will address the grounds, as the parties did, in two tranches: first, those directed to whether there was any error in the primary judge concluding that the warrant was an indorsed New Zealand warrant, and second, those directed to establishing an error in the conclusion of the primary judge that surrendering Ms Coates-Kelly would not be oppressive or unjust.

Grounds 1-5: Error in concluding that warrant is an “Indorsed New Zealand warrant” within s 34(1)(a)(i)

61    Ms Coates-Kelly’s submission is that a warrant is not a New Zealand warrant for the purposes of the Extradition Act unless the offences listed in the warrant are, in fact, the offences for which the person has been convicted or charged. A warrant being a New Zealand warrant is said to be a jurisdictional fact. That is, it was submitted that a warrant does not fulfil the definition of a New Zealand warrant unless it identifies the offences correctly, as a matter of fact, which is to be determined by the reviewing court, and this Court on any appeal. Ms Coates-Kelly submitted that concepts such as an extradition being conducted on the backing of a warrant or that extradition is based on the historical fact of the endorsement of the warrant are incorrect. It was submitted that this jurisdictional fact is not established because Ms Coates-Kelly was not charged with any of the offences in the warrant, only an offence contrary to s 148. Ms Coates-Kelly’s submission is dependent on s 148 being a separate offence.

62    Pausing there. It is appropriate to recall, as explained above, that the argument as to s 148 being a stand-alone offence is advanced for the first time on appeal, and involves the interpretation of s 148, which is not supported by any evidence. That is so regardless of whether Ms Coates-Kelly succeeded in withdrawing her admissions. Although Ms Coates-Kelly maintained she had an argument even if the Court refused her application to withdraw her admissions, it is difficult to see a basis for it. As the admissions stand, the primary judge’s reasoning is unimpeachable.

63    The respondent challenges Ms Coates-Kelly’s position, based primarily on the construction of the Extradition Act and the authorities that have considered it.

64    Ms Coates-Kelly’s submission is not supported by the terms of the Extradition Act and is inconsistent with authority. The respondent’s submissions is to be accepted.

65    First, the procedure in respect to New Zealand extraditions being based on the backing of the warrant was explained in Moloney, referred to above at [26]. Ms Coates-Kelly’s submission that Moloney is not contrary to her submission is plainly incorrect. No error in the reasoning process was pointed to by Ms Coates-Kelly so to suggest that that decision, or earlier decisions to the same effect, are incorrect. To the contrary, the procedure described in Moloney is consistent with the process of treating extraditions to New Zealand as akin to those between states in Australia. The procedure detailed above, sets out the limits of what must be provided to the magistrate, and what the magistrate must be satisfied of, in order for the magistrate to indorse the warrant.

66    Second, it follows that whether the warrant satisfies the definition of a “New Zealand warrant” is determined on the face of the warrant. So much was accepted by Branson J in Heslehurst v New Zealand [2000] FCA 1311 (Heslehurst) at [20]. The concept of “New Zealand warrant”, which is the basis of Ms Coates-Kelly’s submission, is defined in s 5 of the Extradition Act to mean “a warrant that purports to be issued by a court, a judge, a magistrate or an officer of a court, of New Zealand, being a warrant for the arrest of a person accused or convicted of an offence against the law of New Zealand”.

67    Ms Coates-Kelly contended that the definition of “New Zealand warrant” comprised two independent limbs, delineated by the internal comma which precedes “being” in the definition. It was contended, relying on Heslehurst at [20], that “purports” only qualifies that part of the definition which “is concerned with the issuing of the warrant in the sense of its provenance”. It was submitted that this supported the construction Ms Coates-Kelly promoted, as it followed that it was necessary to establish that the offences listed in the warrant were the offences for which the person has been convicted or charged. It is appropriate to refer to the passage relied on in the context in which it appears. At [20], Branson J observed that:

It seems to me that the words “that purports to be” in the statutory definition of “New Zealand warrant” qualify only that part of the definition which is concerned with the issuing of the warrant in the sense of its provenance. On this basis, it is necessary that the warrant be “a warrant for the arrest of a person accused … of an offence against the law of New Zealand”. The direction at the foot of the warrant is plainly sufficient to establish that it is “a warrant for the arrest of a person”. The recital in the body of the warrant concerning the laying of informations against the person whose arrest the warrant directs is sufficient, in my view, to establish that the warrant is for the arrest of a person accused of an offence. The heading of the warrant refers to the Summary Proceedings Act 1957. It is not reasonably open to question (and was not questioned in this proceeding), and is capable of verification by reference to authoritative publications of the Government of New Zealand, that there is a statute of the Parliament of New Zealand with the short title Summary Proceedings Act 1957 (s 144 of the Evidence Act 1995 (Cth)). Further, for the reasons given above, I am satisfied that the reference to the conduct said to constitute the offences, being conduct “at Auckland”, is sufficient to show that the conduct said to constitute the offence was conduct in New Zealand. For these reasons I am satisfied that the warrant is “a warrant for the arrest of a person accused … of an offence against the law of New Zealand.”

68    There was an unsuccessful appeal in Heslehurst, in which it was not necessary for the Full Court to examine the correctness of any of the conclusions by Branson J as to the meaning of the definition of “New Zealand warrant”: see Heslehurst v New Zealand (2001) 109 FCR 226 (Heslehurst (Full Court)).

69    It is plain from the passage recited, that her Honour concluded the issue of whether the warrant satisfied the definition of a “New Zealand warrant” on the face of the warrant.

70    Moreover, as a matter of ordinary English, the role of the clause “being a warrant for the arrest of a person accused or convicted of an offence against the law of New Zealand” in the definition of “New Zealand warrant” in s 5 of the Extradition Act is to give particularity to the word “warrant” where it first appears in that definition. It is therefore incorrect to characterise the definition as having two discrete limbs.

71    Equally, and again as a matter of ordinary English, while it may be accepted, and as Branson J concluded in Heslehurst, that the word “purports” governs only the New Zealand issuing authority, the definition does no more than require that a document said to be a “New Zealand warrant” on its face meet the description “a warrant for the arrest of a person accused or convicted of an offence against the law of New Zealand” and be apparently issued by “a judge, a magistrate or an officer of a court, of New Zealand”. No more detailed level of abstraction is necessary in order for a document to fall within the statutory definition of “New Zealand warrant”.

72    This conclusion is consistent with the approach to extraditions to New Zealand being on the backing of warrants, as explained in Moloney.

73    Ms Coates-Kelly’s submission gains no support from Heslehurst.

74    Third, as the respondent submitted, a statutory definition is unlikely to contain a jurisdictional fact because a definition only has whatever effect is given to it by the substantive provisions of the defining Act: Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50 (Marku) at [74](b). In Marku, the Full Court observed at [74]:

Fourthly, the appellant’s claim that identity is a jurisdictional fact relies heavily on the proposition that identity is an issue which implicitly arises under both s 19(2)(a) (i.e. the stipulation that the person is only eligible for surrender if the supporting documents in relation to the offence have been produced to the magistrate) and the identification in s 19(3) of those supporting documents (including, in particular, the requirement in s 19(3)(b) that there be duly authenticated documents as provide evidence of the conviction). The appellant argues that the reference to the conviction necessarily and implicitly refers to the conviction of the person who is physically before the s 19 magistrate. That contention gives rise to the following difficulties:

(a)     it overstates the magistrate’s function in respect of those provisions. That function is one which may be properly described as “classificatory” rather than operative, in the sense that the magistrate’s role is simply to ensure correspondence between (i) the authenticated supporting documents which are produced, and (ii) the description of those documents in s 19(3). The s 19 proceedings have to be conducted on the basis that the person the subject of those proceedings is an “extraditable person” within the meaning of s 6. The reference in s 19(2)(a) to “the offence” must be taken to be a reference to either of the matters specified in s 6(a)(i) or (ii), namely an accusation that the person has committed an offence or the person’s conviction of an offence. As the plurality stated in Kainhofer at 539, the introductory words of s 19(3)(a) and (b) “merely direct the s 19 magistrate to the relevant description to be applied to the supporting documents in the case of the particular extraditable person who is the subject of the s 19 proceedings”. They do not entitle the s 19 magistrate to undertake his or her own independent inquiries into the person’s identity; and

(b)     the appellant’s argument treats s 19(3) as though it confers a substantive power, but its essential character is that of a definitional provision. The following observations by Barwick CJ, McTiernan and Taylor JJ in Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635 are apposite:

The function of a definition clause in a statute is merely to indicate that when the particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way… (emphasis added in the original).

75    If a person’s identity is not a jurisdictional fact in a surrender hearing under Pt II (which imposes a more stringent regime than Pt III) of the Extradition Act (see Marku at [61], [69], [74]), then the offence(s) which the person is charged with or convicted of cannot be either. An endorsement at the s 28 stage is a narrow and formal function. It is conducted by way of an ex parte hearing. There is no basis in the legislation to contend that the magistrate is to undertake substantive consideration of what offences a person has been convicted of or charged with. Rather, the nature of the proceedings at that stage tells against the existence of the jurisdictional fact contended for.

76    In that context, it is also appropriate to recognise that by s 34(4) of the Extradition Act, the person is not entitled to adduce evidence to contradict an allegation that they engaged in conduct constituting the offence in relation to which the offence was issued. Therefore, the question of whether the person has in fact committed the offences stated in the New Zealand warrant is not relevant to whether to surrender of the person under s 34. The definition of a New Zealand warrant must be read consistently with s 34(4).

77    Ms Coates-Kelly’s reliance on Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 376 ALR 575 (Smethurst) is misplaced. There, the statutory context was very different. In Smethurst, the Court was concerned with s 3E of the Crimes Act 1914 (Cth) which expressly required identification of the offence(s), and the description of the offence(s) in a search warrant, as doing so limited the powers or scope of the search which was authorised: Smethurst at [12], [26]-[27]. That is not required in the Extradition Act.

78    Nor does Ms Coates-Kelly’s submission gain any support from her reliance on Kenneally v New Zealand [1999] FCA 1320; (1999) 91 FCR 292 (Kenneally). In Kenneally, the argument concerned the application of s 34 of the Extradition Act, and whether it would be unjust or oppressive to return the person to New Zealand. In Kenneally, the appellant had been charged with offences but not convicted, and the Court concluded that the prima facie evidence that the respondent had chosen to disclose on the extradition application could not possibly support the offences for which the appellant had been charged. That is to be contrasted to this case, where Ms Coates-Kelly has not only been charged but also convicted, such that a New Zealand judge determined that there was sufficient evidence to establish guilt beyond reasonable doubt. For present purposes, it is sufficient to note that there was no suggestion in Kenneally that the warrant, for that reason, (being that the prima facie evidence could not support the offences for which the appellant had been charged), was not a New Zealand warrant.

79    Fourth, Ms Coates-Kelly’s case is in a context where it is well settled that a magistrate in a surrender hearing does not rule on the formal or substantive validity of a foreign warrant, because he or she is not an expert in foreign law: Zoeller v Republic of Germany (1989) 23 FCR 282 at 299-300; Bennett v United Kingdom (2000) 179 ALR 113 at [23], [25]. Although those authorities considered applications under Pt II of the Extradition Act, that reasoning applies equally to a surrender hearing under s 34 (and, a priori, the indorsement of a warrant under s 28), given that Pt III provides for a more streamlined process for extradition to New Zealand. Ms Coates-Kelly’s submission that she is not asking the Court to determine the validity of the warrant, only to apply the statutory definition, is a matter of semantics. The task Ms Coates-Kelly contends is required to be undertaken by the Court is to do just that.

80    Fifth, as referred to above, the extradition process to New Zealand in Pt III, unlike those processes covered by Pt II, does not contain a speciality requirement or assurance: Moloney at [25]. That is, in Pt II the offences in the warrant for which the extradition is sought limit the offences with which the person can be charged on return to the requesting country. The surrendered person will only be dealt with in the requesting country for the offence(s) in respect of which the person’s surrender was sought and given (subject to limited exceptions, for example, any other offence being one for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) and of which the person could be convicted on proof of the conduct constituting any such offence: ss 22(3)(d), 22(4) and 42. That no such requirement applies in relation to extradition to New Zealand tells strongly against any suggestion that the warrant must, as a matter of fact, correctly identify the offences for which a person is convicted or charged.

81    The surrender hearing in s 34 operates on the historical fact of indorsement. The relevant precondition is the arrest and remand of the person under an indorsed warrant. This reflects a staged extradition process, as is the case in respect to Pt II of the Extradition Act: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (Kainhofer) at 538. That is, the administrative powers are exercised in sequence, but a repository of power does not review the earlier decision in the sequence. Accordingly, it is not part of a magistrate’s function under s 34 to decide whether the warrant should have been indorsed. It follows, as contended for by the respondent, that the validity of a New Zealand warrant is not an issue properly raised in a s 35 review either, which is a de novo reconsideration of whether there are grounds under s 34(2) for refusing surrender. The respondent recognised that there is a potential qualification, in that a s 34 magistrate may be entitled to disregard a warrant that was “invalid ex facie”: Kainhofer at 539; Marku at [78]; Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [62], [65]; Samson v McInnes (1998) 89 FCR 52 at 57. For example, the indorsement on the warrant, on its face, is patently deficient: see Samson v McInnes at 57. Any defects in this warrant (for example, where it refers to Ms Coates-Kelly being charged, where she has been convicted, and where it refers incorrectly to s 143 of the NZ Tax Act in respect of 9 offences) are not of the nature to make the warrant “invalid ex facie”.

82    Ms Coates-Kelly has not established that her construction of a “New Zealand warrant” in s 5 is correct, nor that a jurisdictional fact of the nature she contends is contained therein.

83    This warrant is plainly a “New Zealand warrant”. It is headed “Warrant to arrest defendant”; identifies Ms Coates-Kelly as the defendant; states “To: Every Constable … You are directed to arrest the defendant and bring the defendant before any Court”; bears a seal stating, “The seal of the District Court New Zealand”; and identifies 46 charges against the “Tax Administration Act 1994”, which is the title of a New Zealand law. All of these features on the face of the warrant satisfy the definition in s 5.

84    As leave to withdraw the admissions was not granted, the primary judge’s conclusion which relied, inter alia, on accepting the admissions made by Ms Coates-Kelly, was well open to him. Ms Coates-Kelly has not established any error in the conclusion of the primary judge.

85    Even if leave to withdraw the admissions had been granted, given the extradition process to New Zealand as described above (being inter alia, the requirements of s 28, and the procedure being on the backing of the warrant), no error could be established.

86    In this case, the supporting documents accompanying the warrant clearly identified the charges of which Ms Coates-Kelly was convicted. Before the magistrate was the indorsed warrant, together with an affidavit from the police officer which attached to it evidence that explained that Ms Coates-Kelly was charged with aiding and abetting the relevant offences, and annexed thereto were the relevant provisions, including ss 143A, 143B and 148. Also before the magistrate were the oral and written judgments of Judge Kellar who tried Ms Coates-Kelly in absentia. This material was before the primary judge on the s 35 review.

87    The supporting documents before the magistrate at the s 28 stage can be referred to, if necessary, to explain a warrant: see Heslehurst (Full Court) at [16]; von Arnim v Ellison [2006] FCAFC 49; (2006) 150 FCR 282 at [49].

88    We do not accept Ms Coates-Kelly’s submission that there is complete, or even substantial, inconsistency between the warrant and the extraneous material. Indeed, there is nothing in the material before the primary judge to raise any inherent contradiction between Ms Coates-Kelly’s admissions and the judgment of Judge Kellar.

89    In any event, given that this stage of proceedings relates to the backing of the warrant, as explained above, the indorsed warrant is a New Zealand warrant.

90    The primary judge, having been satisfied that the warrant is a New Zealand warrant, said at [66]-[67]:

[66]    The applicant, in her submissions, also concedes that the March 2019 warrant was indorsed by a magistrate, namely, Magistrate Bazzani, in accordance with s 28 of the Act. I reject the applicant’s submission that the defects in the warrant, as identified by the applicant, render the March 2019 warrant invalid and prevent the March 2019 warrant being a New Zealand warrant as defined by s 5 of the Act. I accept the respondent’s submission that where, as in this case, the applicant has made a request under s 34(1)(b) of the Act for a proceeding to be conducted under that section, the issue is whether the applicant was arrested under an “indorsed New Zealand warrant” within the meaning of s 34(1)(a)(i) of the Act. I also accept the respondent’s submission that s 34(1)(a)(i) operates on the historical fact of the decision by Magistrate Bazzani on 28 February 2020 to indorse the March 2019 warrant which decision has not been challenged by the applicant.

[67]    It was no part of Magistrate Bourke’s function under s 34(1)(b) to rule on the validity of the March 2019 warrant which was issued by New Zealand District Court Judge M A Crosbie. Similarly, in conducting this rehearing pursuant to s 35 of the Act, it is no part of my task to rule on the validity of the March 2019 warrant. Any challenge to the validity of the March 2019 warrant is properly a matter for the New Zealand courts.

91    Ms Coates-Kelly has not established any error by the primary judge on Grounds 1-5 in her appeal.

Grounds 6-9: Unjust or oppressive to surrender Ms Coates-Kelly

92    It will be recalled, as explained above, the expression “unjust” is directed primarily to the risk of prejudice to the person in the conduct of the trial, whereas “oppressive” is directed to hardship to the accused resulting from changes in the person’s circumstances: Moloney at [65]-[66]; New Zealand v Templeton [2017] FCA 745 (Templeton) at [69]. Moreover, contrary to Ms Coates-Kelly’s contention, the process of extradition proceeds on the assumption of fairness: Moloney at [36]-[37]. It proceeds on the basis of the high regard in which New Zealand courts are held in Australia.

93    Ms Coates-Kelly’s submission primarily relies on two authorities, Kenneally and Bannister v New Zealand (1999) 86 FCR 417 (Bannister), contending that the circumstances in which she would be surrendered fall within the principles enunciated in each case, such that it would be unjust or oppressive to order her surrender.

94    Ms Coates-Kelly’s submission cannot be accepted.

95    As to the first case, Kenneally, it was submitted that the Court there concluded that, based on the evidence before it, taken at its highest, Mr Kenneally could never be convicted of the specified drug offences in the warrant and as a result it would be oppressive to surrender him to New Zealand on those charges, within the meaning of s 34(2): Kenneally at [56]. Ms Coates-Kelly submitted, by analogy, that Ms Coates-Kelly has not been charged with and could not be convicted of any of the offences stipulated in the indorsed warrant and therefore it would be oppressive to surrender her to New Zealand.

96    This submission was not raised below, and is based on the proposition that there is no valid charge in the indorsed warrant, as s 148 is a separate stand-alone charge. It was submitted that Ms Coates-Kelly could not be surrendered on the basis of offences in a warrant of which she was never convicted and could not have been charged with. It was submitted that this case was “on all fours” with Kenneally.

97    An obvious distinguishing feature from the facts in Kenneally, is that Ms Coates-Kelly, unlike the appellant in Kenneally, has already been convicted of offences. It is plain, as discussed above, that the evidence before the magistrate, and later the primary judge, was that Ms Coates-Kelly was convicted of offences contrary to the NZ Tax Act on the basis of secondary liability in s 148. It is not denied that she has been convicted of those offences. On surrender, no doubt Ms Coates-Kelly will be sentenced for the offences, or she will make an application for a retrial. In any event, the underlying factual proposition has not been established. The submission proceeds on the basis of her construction of s 148, which is a matter of legal controversy on which there is no evidence. Also, as explained above, the magistrate was entitled to look at the supporting material (including the reasons for the convictions), which made the basis of the convictions clear. By contrast to Kenneally, Ms Coates-Kelly has been convicted (not just charged), and a New Zealand judge has determined that there was sufficient evidence to establish guilt beyond reasonable doubt. No one has been misled as to the basis of the conviction. We add also, in any event, that Ms Coates-Kelly has not succeeded in withdrawing her admissions, and has not established they should not have been acted upon. This argument is misconceived.

98    As to the second case, Bannister, Ms Coates-Kelly submitted that the trial in New Zealand in her absence was manifestly unfair, and as a result, in the event of her surrender, she will be subjected to a New Zealand statutory retrial procedure that is fundamentally unfair by Australian standards such as to render her surrender unjust and oppressive within s 34(2) and the Bannister principles. In summary, Ms Coates-Kelly submitted that to apply for a retrial, she must apply under s 125(2)(c) and (7)(b), and therefore make that application to Judge Kellar within 3 weeks of her return to New Zealand. With that application she must provide an outline of defence to each charge, as well as formal statements from each of her witnesses to be called on a retrial, in circumstances where she has not seen or heard the prosecution evidence. It was submitted that assuming Ms Coates-Kelly is entitled to the presumption of innocence on any retrial, many of the fundamental principles of a fair criminal trial, as that concept is understood in Australia and reinforced by the High Court, will be denied to Ms Coates-Kelly. Those fundamental principles were said to include having the matter heard and determined by an independent judge, not one who was keen to proceed in her absence and who has already determined the matter and made adverse findings (any application for recusal is also determined in the discretion of the same judge), and the requirement that the prosecution prove its case beyond a reasonable doubt, coupled with a right to remain silent, and a right not to disclose one’s case before the prosecution has closed its case, citing, inter alia, Petty v The Queen (1991) 173 CLR 95, Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 at [95].

99    As a general proposition, the bare fact that Ms Coates-Kelly has been convicted in her absence is not contrary to Australian standards of justice. There are a number of Australian laws which make similar provision for findings of guilt in the absence of an accused person: see, for example, Criminal Procedure Act 1986 (NSW), s 196 (which includes indictable offences tried summarily); Criminal Procedure Act 2009 (Vic), ss 25, 80; Criminal Procedure Act 1921 (SA) ss 62, 62A, 62B. Australian law is concerned about a person being tried without notice: Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 515; Hellenic Republic v Tzatzimakis [2003] FCAFC 4; (2003) 127 FCR 130 at [44]-[45], cf [83]-[93]. Plainly, Ms Coates-Kelly was on notice of her trial. Ms Coates-Kelly acknowledged that she was not contending that a trial in absentia is prima facie unfair, but rather, that it ought not to have occurred in this case, and separately, that the retrial procedure is unfair.

100    The relevant provisions relied on by Ms Coates-Kelly are ss 121 and 125 of the New Zealand Criminal Procedure Act. Section 121 is as follows:

121 Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing

(1)    This section applies to any hearing, other than a trial or a sentencing hearing, if—

(a)     the offence charged is a category 2, 3, or 4 offence; and

(b)     a not guilty plea has been entered to the offence charged; and

(c)     the defendant is required, under section 118, to be present at the hearing; and

(d)    the prosecutor attends the hearing, but the defendant does not.

(2)    When this section applies, the court may do either or both of the following:

(a)    proceed in the absence of the defendant:

(b)    issue a warrant to arrest the defendant and bring him or her before the court.

(3)    Despite subsection (2), the court must not proceed with a hearing in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

(4)    Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:

(a)    any information available to the court about the reasons for the defendant’s absence:

(b)    any issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues:

(c)    the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:

(d)    the nature and seriousness of the offence:

(e)    the interests of any co-defendant.

(5)    If the hearing is in front of a Registrar under section 57(4), the Registrar may—

(a)    proceed with the hearing in the absence of the defendant; or (b) issue a warrant to arrest the defendant and bring him or her before the court.

101    Section 125 is as follows:

125 Retrial if defendant found guilty in his or her absence

(1)    A defendant who is found guilty following a trial that proceeded in his or her absence may apply to a court for an order granting a retrial of the charge.

(2)    The application—

(a)    must be filed in the court in which the defendant’s trial was held; and

(b)     must be filed no later than 15 working days after the date on which—

(i)    a notice is served on the defendant under section 124(3)(a); or

(ii)     the defendant appears in court pursuant to a warrant issued under section 124(3)(b); and

(c)    must be determined by the judicial officer who presided over the trial or, if that is impracticable, any Judge.

(3)    If the application is on the ground described in subsection (7)(b), it must be supported by—

(a)    an outline of the defence on which the defendant intends to rely if a retrial is granted; and

(b)     a formal statement from each witness who the defendant intends to call.

(4)     The Registrar of the court must cause a copy of the application to be served on the prosecutor.

(5)     The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.

(6)     The court may consider the application on the papers or at an oral hearing.

(7)     The court may order a retrial of the charge if—

(a)     the court is satisfied that—

(i)     the defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the court at the time of the trial; and

(ii)     it is in the interests of justice; or

(b)     regardless of whether the defendant had a reasonable excuse for nonattendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.

(8)     Despite subsection (7), the court must order a retrial if satisfied that the defendant was not notified of the trial.

(9)     A formal statement provided to the court in accordance with subsection (3)(b) is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

102    The primary judge rejected Ms Coates-Kelly’s submission on this topic. It is convenient to recite his Honour’s reasons at [92]-[96]:

[92]    I reject the applicant’s submission that the manner in which Judge Kellar exercised his discretion and determined to proceed with the trial in the absence of the applicant is a proper basis for finding that the surrender of the applicant to New Zealand would be unjust or oppressive under s 34(2) of the Act. It is not part of my function in conducting the rehearing under s 35 of the Act to conduct a judicial review of Judge Kellar’s decision to proceed with the trial in the applicant’s absence. Any challenge to Judge Kellar’s decision to proceed with the trial in the absence of the applicant is a matter which should be dealt with through the New Zealand judicial system.

[93]    Section 121 of the New Zealand Criminal Procedure Act 2011 provides that, where a defendant such as the applicant is charged with a category three offence, and a not guilty plea has been entered to the offence charged and the prosecutor attends the hearing, but the defendant does not, the court may proceed in the absence of the defendant if the court is satisfied that it is in the interests of justice to do so. Judge Kellar in his Minute of reasons for proceeding with the trial in the absence of the applicant dated 14 September 2014, referred to the requirements of s 121 and was satisfied that it was in the interests of justice to proceed with the applicant’s trial in her absence.

[94]    The fact that the applicant’s trial was conducted by Judge Kellar in her absence does not demonstrate injustice or oppression under s 34(2) of the Act.

[95]    I do not accept the applicant’s submission that the manner in which Judge Kellar conducted the trial in the applicant’s absence was manifestly unjust, such that surrender of the applicant to New Zealand would be unjust or oppressive under s 34(2) of the Act. The applicant, if surrendered to New Zealand, may, through the New Zealand courts, apply for a retrial under s 125 of the New Zealand Criminal Procedure Act 2011. The assumption which I must make is that any such application for retrial would be fair.

[96]    I am not satisfied that the applicant has established “any other reason” why surrender of the applicant to New Zealand would be unjust or oppressive for the purposes of s 34(2) of the Act. The position which the applicant now finds herself in, was not as a consequence of the conduct of Judge Kellar in proceeding with the trial in the applicant’s absence, and the subsequent manner in which Judge Kellar conducted the trial, but was caused by the applicant’s own conduct in failing to attend her trial or otherwise take steps to seek an adjournment of the trial: Templeton at [64].

103    Ms Coates-Kelly has not pointed to any error in those conclusions, but rather has sought to re-run the arguments on this topic which were advanced below.

104    It is necessary to put the applicant’s submissions in context.

105    Ms Coates-Kelly left New Zealand after being charged with offences. She was on notice of the trial date. The Dunedin District Court took steps to contact Ms Coates-Kelly before the hearing, including by sending an email on 28 August 2015. Ms Coates-Kelly was aware of the possibility that she could be convicted in her absence if she did not attend. Her bail requirements required her to attend, as did the undertaking she gave to the Court to do so. The evidence before the primary judge made those facts abundantly clear. Indeed, Ms Coates-Kelly emphasised those matters in obtaining bail, a condition of which enabled her to travel to Australia pending trial. This is in a context where Ms Coates-Kelly is a barrister, a matter she herself emphasised as to the consequences of her non-attendance at her trial. An affidavit from Ms Coates-Kelly filed in support of her bail application said, inter alia, in respect to what would occur if she failed to appear at her trial, “I apprehend that a trial would occur in my absence”. Ms Coates-Kelly had elected to proceed summarily, that is, to be tried by judge alone.

106    Also, as submitted by the respondent, when failing to attend the trial, Ms Coates-Kelly did not: provide the trial court any supporting evidence of her claimed condition; seek an adjournment of the trial; instruct a lawyer to conduct the trial in her absence; instruct a lawyer to make submissions against proceeding in absentia, or even take that position in her email to the Dunedin District Court.

107    As the respondent submitted, the issue under s 34(4) of the Extradition Act is whether Ms Coates-Kelly’s surrender would be unjust or oppressive, not whether her trial in absentia was unjust per se. In any event, the decision of Judge Kellar was not unjust. His Honour had power, by virtue of s 121, to try Ms Coates-Kelly in her absence if he was satisfied that it was in the interests of justice to do so. Judge Kellar took into account relevant considerations, and was satisfied that proceeding in her absence was in the interests of justice. That Judge Kellar could have taken other options does not render the conduct unreasonable. That some other judge may have taken a different approach does not render the decision unreasonable. With the matter proceeding in absentia, the prosecution was still required to prove its case beyond reasonable doubt.

108    Whether the trial in absentia was unfair in the circumstances, is a matter for the New Zealand courts. This Court is not conducting a review or an appeal from that decision. In any event, as explained above, Ms Coates-Kelly has not, for the purposes of this appeal, established that it was unfair.

109    Ms Coates-Kelly also has not established that the retrial procedure in s 125 is fundamentally unfair by Australian standards.

110    It is significant that New Zealand law provides that if a trial occurred in absentia, an application for a retrial can be made. As apparent from the terms of the provision, New Zealand provides a scheme whereby what is necessary to support an application for retrial varies depending on the circumstances in which the trial was conducted. For example, if the trial proceeded in absentia in circumstances where there was a reasonable excuse for the non-attendance by the accused, which was unknown to the court at the time, the discretion to order a retrial is broad: s 127(7)(a). Perhaps not surprisingly or unreasonably, the provision provides that if there was no reasonable excuse, although an application can be made, different criteria apply. In that event, the court can grant a retrial if it is satisfied the defendant would have a reasonable prospect of success if he or she had attended the trial: s 125(7)(b). To that end, if an application is made in those circumstances it must be supported by an outline of defence and a formal statement from each witness who the defendant intends to call: s 125(3).

111    Ms Coates-Kelly makes a number of complaints about that procedure, which would apply to any application by her for a retrial.

112    First, Ms Coates-Kelly complains that if she is surrendered, then the matter would go back to Judge Kellar, who, it was contended, had acted unreasonably in hearing her trial in absentia when he ought not to have, and who made findings against her. The import of the submission was that his Honour would be biased in deciding any application made to him. It may be accepted that the matter would go before Judge Kellar, unless it would be impractical for that to occur: s 125(2)(c). However, there is no reason to suggest Judge Kellar would do anything other than bring an open mind. Of course, Ms Coates-Kelly could apply for the judge to recuse himself, if there was a proper basis for him to do so. There is no basis for considering that the New Zealand courts would do anything other than act in accordance with the law in deciding whether to order a retrial. Any suggestion to the contrary goes no higher than bare speculation: see, for example, Templeton at [76]; Moloney at [165], [225].

113    Second, in so far as the complaint went to the timeframes in which the application for a retrial and any material supporting it were to be provided, there is no basis to contend that they are unreasonable or that Ms Coates-Kelly would be in a position different to that which she would have been in before her original trial.

114    Third, the procedure whereby Ms Coates-Kelly, if she made an application for a retrial, must provide certain supporting material, is said to have encroached on her fundamental right to silence. The complaint is directed to the fact that the application must be supported by an outline of defence and a formal statement from each witness who the defendant intends to call.

115    It can be immediately observed that there are a number of Australian laws which now require disclosure of various matters relating to a defence: for example, see, Criminal Procedure Act 2009 (Vic) s 183 (response to prosecution opening), s 190 (obligation to disclose alibi defence); Criminal Procedure Act 1986 (NSW) s 143(1)(b) (accused notice must include nature of the defence), s 150 (obligation to disclose alibi). Indeed, as a consideration of s 143 of the Criminal Procedure Act 1986 (NSW) reflects, in addition to being required to disclose the nature of the accused’s person’s defence, including particular defences relied on, the accused must, inter alia, respond to the facts, matters and circumstances on which the prosecution intends to rely, identifying which the accused intends to take issue, any points of law the accused intends to raise, and, if any expert evidence is proposed to be relied on, a copy of each expert report the accused intends to rely on: s 143(1)(b), (c), (d), (h). These provisions apply in circumstances where an accused has not yet been tried at all, which is to be contrasted to the position of Ms Coates-Kelly, who has been tried, and is in a position of possibly applying for a retrial.

116    Moreover, it is to state the obvious that Ms Coates-Kelly does not need to provide a statement from herself unless she is intending to give evidence.

117    Regardless, the authorities relied on by Ms Coates-Kelly as to the importance of the right to silence, and indeed the concept of the right to silence itself, is not concerned with a situation of a person who has been convicted: see, for example, Petty at 99-100, Strickland at [95]. At [95] in Strickland, Kiefel CJ, Bell and Nettle J said the right to silence “applies at all stages of the process to all persons suspected of an offence whether charged or not yet charged as well as at trial” (emphasis added).

118    Ms Coates-Kelly having been convicted at trial is in a different position from a person accused of an offence (whether charged or not) to which those cases apply. It is not contrary to the right to silence to require, pursuant to s 125, an applicant to provide supporting material to establish she has a reasonable prospect of success, which may (but not must) include a statement from her. Ms Coates-Kelly is in the position of having to establish this because she has no reasonable excuse for her failure to attend. Nor, as Ms Coates-Kelly appears to contend, is the provision of such material in this context inconsistent with the prosecution’s obligation to prove the guilt of the accused beyond reasonable doubt. The submission ignores the nature of an application of this kind, and the position of any applicant applying for retrial. If, an application for a retrial is made, and is successful, on any retrial, the prosecution must prove its case beyond reasonable doubt. Moreover, a retrial (for example, after a successful appeal), is typically conducted in a context where the accused has already once presented their case at the first trial, and may have then given evidence. It is not suggested by that process that any retrial is fundamentally unfair on the basis that the defence case may be known. Nor is it suggested that any retrial is inconsistent with the prosecution’s onus to prove the charges.

119    Ms Coates-Kelly’s submission also fails to grapple with the fact that she has been convicted and therefore, after being surrendered, on return to New Zealand, she would either be sentenced for the offences of which she was convicted, or, if she seeks to do so, make an application for a retrial.

120    In that context, Ms Coates-Kelly’s analogy with Bannister, where New Zealand law provided for representative charges which are purportedly anathema to Australian law, is inapt.

121    The respondent also submitted that there must be some connection between any injustice and the surrender to New Zealand: Templeton at [64]. Ms Coates-Kelly did not challenge that concept, but submitted that the oppression and injustice does not arise from her conduct, but rather from the New Zealand warrant, and the consequences that arise from considering Kenneally and Bannister. In some respects this submission is academic as we have not accepted Ms Coates-Kelly’s submissions underpinning it. That said, this is a very different case to those relied on by Ms Coates-Kelly. In addition to the conduct referred to above at [105]-[106], Ms Coates-Kelly has since failed to attend; failed to instruct a lawyer to apply for a rehearing, or to otherwise appeal or overturn the decision to proceed in absentia; failed to return to New Zealand to deal with the matter; and failed to contact the Dunedin District Court or the prosecution at any point between 2015 and 2021.

122    Ms Coates-Kelly has not established any error in the primary judge’s conclusion that it would not be unjust or oppressive to surrender her to New Zealand, as contended in Grounds 6-9.

Conclusion on appeal

123    Ms Coates-Kelly has not established her appeal, and it must accordingly be dismissed.

124    The primary judge, pursuant to s 35(2)(a) of the Extradition Act, confirmed the order of Magistrate Burke made on 30 August 2021, surrendering Ms Coates-Kelly to New Zealand. That order is confirmed.

Section 39B application

125    This application is brought pursuant to s 39B(1A)(c) of the Judiciary Act, which confers original jurisdiction on the Court “in any matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. Ms Coates-Kelly seeks a declaration that the warrant issued by the Dunedin District Court in New Zealand is not a “New Zealand warrant” within the meaning of s 5 of the Extradition Act; an order in the nature of certiorari quashing the Magistrate’s indorsement of the warrant under s 28 of the Extradition Act; and a consequential order(s) to effect the release of the applicant from prison.

126    However, there are fundamental difficulties with the application.

127    First, as previously explained, this application was brought after the s 35 review and filing of the appeal therefrom. Since 30 August 2021, Ms Coates-Kelly’s continued detention has been authorised by the committal warrant made under s 34(1)(d) of the Extradition Act. The legal effect of the indorsed warrant is spent. It is not possible to issue certiorari to quash the decision of Magistrate Bazzani, because, as a legal matter, there is nothing to quash.

128    Second, given the conclusion above that the s 34 decision operates on the historical fact of arrest pursuant to an indorsed New Zealand warrant, any declaration in this proceeding would not have any effect on the parties’ rights.

129    Third, Ms Coates-Kelly has not sought directly to impeach or question the validity of either the surrender warrant, the custodial warrant, or the orders of the primary judge on the review confirming each of these warrants. Despite that, one of the consequential orders sought is an order releasing her present detention, which is pursuant to the committal warrant. As Ms Coates-Kelly accepted, the order in respect to that warrant was made by the primary judge exercising original jurisdiction, and this Court, also exercising original jurisdiction, could not set that aside.

130    Fourth, although the applicant appeared to contend that nonetheless, the application should be considered and the declaration sought ought to be made, no proper basis was articulated as to why that should be so. The appropriate time to bring such an application was prior to, or in conjunction with, an application for review under s 35 of the Extradition Act. Again, as explained above, Ms Coates-Kelly, who was represented by counsel and a solicitor, made a forensic choice at the time of the s 35 review not to seek the material on which she now relies. This application in the original jurisdiction is a transparent endeavour to subvert the evidentiary restrictions which she now faces in the exercise of the appellate jurisdiction she has invoked by virtue of s 35(6)(e) of the Extradition Act. What is sought is a declaration inconsistent with the conclusion that the appeal be dismissed.

131    Given the lack of utility, there can be no proper basis to exercise the discretion.

132    The s 39B application in the original jurisdiction should be dismissed.

Conclusion

133    Accordingly, for the reasons above, leave to withdraw admissions made in the hearing before the primary judge and before the magistrate is refused, the appeal from the decision of the primary judge is dismissed, and the s 39B application is also dismissed. Ms Coates-Kelly is to pay the costs of the first respondent to be agreed or assessed.

Associate:

Dated:    16 August 2022