FEDERAL COURT OF AUSTRALIA

Bannister v New Zealand [1999] FCA 362

EXTRADITION – practice – whether particularization of charges necessary – whether representative or specimen charges sufficient – comparison of Australian and New Zealand procedure

EXTRADITION – s 35 of the Extradition Act – “best interests of the child” – application of United Nations Convention – whether effects on family – whether delay in bringing the charges

Extradition Act 1988 (Cth)

United Nations Convention of the Rights of the Child

Bates v McDonald (1985) 2 NSWLR 89

R v Accused [1993] 1 NZLR 385

S v The Queen (1989) 168 CLR 266

KBT v The Queen (1997) 191 CLR 417

Binge v Bennett (1988) 13 NSWLR 578

Clear v Holyoak [1993]1 Qd R 376

Perry v Lean (1985) 39 SASR 515

White v Cassidy (1979) 40 FLR 249

WILLIAM TUHURU DAVID BANNISTER v NEW ZEALAND AND

MR KILNER SM

QG 140 OF 1998

SPENDER, KIEFEL & DOWSETT JJ

1 APRIL 1999

BRISBANE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The orders made by Atkinson J in the Supreme Court of Queensland, dated 23 October 1998, be set aside.

2.         The order of R Kilner Esq, SM, that William Tuhuru David Bannister be released, be confirmed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Background

1                     On 20 February 1998 a District Court Judge in New Zealand issued a warrant for the arrest of William Tuhuru David Bannister (the appellant).  The operative provisions of the warrant are as follows:-

“On the 20^th day of February 1998 informations were laid that

WILLIAM TUHURU DAVID BANNISTER of 104 PT CARTWRIGHT DR BUDDINA 4574 QLD AUSTRALIA … at Auckland on between 01/01/75 and 23/09/75 and between 24/09/75 and 31/03/76

BEING A MALE RAPED A FEMALE (2) CHR 2652

between 01/01/75 and 23/09/75

 INDECENT ASSAULT ON A GIRL (2) CHR 2632”

The warrant then directs the appellant’s arrest and production before a District Court “to answer to the informations”.  The warrant was subsequently endorsed by a Queensland Magistrate pursuant to s 28 of the Extradition Act 1988 (Cth) (the “Act”).  The appellant was later apprehended in Queensland and brought before a Magistrate (Mr Kilner SM, the second respondent) pursuant to s 34 of the Act.  Mr Kilner concluded that the appellant “would suffer a considerable hardship if he were now surrendered to New Zealand”, this decision being apparently based upon the lapse of time since the alleged offences and the personal circumstances of the appellant and his family.  The effect of this decision was that the appellant was released pursuant to subs 34(2).  This, in effect, meant that the extradition proceedings had been unsuccessful.  New Zealand applied to a Judge of the Trial Division of the Supreme Court of Queensland for review of the decision pursuant to s 35.  That application was successful, Atkinson J concluding that it would not be unjust, oppressive or too severe a punishment (adopting the wording of subs 34(2)) to surrender the appellant to New Zealand.  Her Honour quashed the orders made by the Magistrate and directed the issue of a warrant for the appellant’s extradition. 

The Appeal

2                     The appellant now appeals to this Court from her Honour’s decision pursuant to subs 35(3).  The grounds of appeal are: 

(1)        that her Honour failed to give appropriate weight to the hardship likely to be caused to the appellant, his wife and children as a result of his extradition;

(2)        the substantial time lapse since the alleged offences;

(3)        misuse of evidence concerning the appellant’s character in determining the question of oppression;

(4)        attribution of excessive weight to the appellant’s conviction for a drug-related offence; and

(5)        attribution of excessive weight to the seriousness of the alleged offences in determining the questions of injustice and oppression.

3                     In support of ground (1), the appellant sought to rely upon the provisions of Article 3(1) of the United Nations Convention of the Rights of the Child which provides:-

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration.”

This convention was ratified by the Commonwealth on 17 December 1990 and came into force, in so far as concerns this country, on 16 January 1991.  See Minister for Immigration and Ethnic Affairs v Teoh (1994-95) 183 CLR 273 at p 285 per Mason CJ and Deane J.  It was submitted that in reliance upon the decision in Teoh, these proceedings were “actions concerning children” and that in exercising the discretion as to extradition, it was necessary to take into account, as a primary consideration, the best interests of the appellant’s children.

The Warrant

4                     In the course of the hearing before this Court, difficulties arose in connection with the warrant, which difficulties had not previously been evident.  These difficulties first appeared when attention was drawn to the imprecise nature of the warrant and the difficulty in reconciling it with the document headed “Summary of Facts” which was before the Magistrate and Atkinson J.  The presence of the figure “2” in brackets following the formulation of both the rape and indecent assault counts presumably indicates that there are two counts of each offence.  From this inference it would follow that the warrant relates to two acts of rape at Auckland, one between 1 January 1975 and 23 September 1975 and another between 24 September 1975 and 31 March 1976 against an unnamed complainant or unnamed complainants.  As to the indecent assault counts, the warrant appears to relate to two such alleged offences between 1 January 1975 and 23 September 1975.  Again, the complainant is not named on either count, nor are there particulars of the alleged offences.  The warrant is in almost skeletal form.  Presumably, pursuant to s 28 and s 5 (definition of “New Zealand warrant”) it is in the form prescribed by law in New Zealand.  See Binge v Bennett (1988) 13 NSWLR 578 at pp 582-83 (per Kirby P) and p 593 (per Mahoney JA).  It was not suggested that the form of the warrant was defective.

5                     Had the appellant sought particulars of the charges, it would have been appropriate to order them.  See Narain v DPP (1987) 15 FCR 411 per Fox J at p 413 and per Wilcox and Jackson JJ at p 425.  It may be that the summary of facts to which we have referred was intended to serve that purpose.  In Bates v McDonald (1985) 2 NSWLR 89 at p 95, Kirby P said that in proceedings of this kind, a court may examine the relevant depositions (if available) for the purpose of deciding whether the charge is “wholly misconceived”, or “cannot possibly be right” or whether it is “demonstrably clear that the proceedings could have no foundation at all”. The other members of the Court (Samuels and McHugh JJA) also appear to have been satisfied to use the depositions for the purpose of ascertaining whether or not there was an arguable basis for the charge.  Such use may well be relevant to the determination of the matters prescribed in subs 34(2).  However care must be taken to avoid infringement of the prohibition contained in subs 34(4) which had no analogue in the legislation under consideration in Bates v McDonald.  Our use of the summary will be limited to use for the purpose of particularization of the charges.

The Charges

6                     At the front of the summary of facts is a page headed “Caption Summary”.  It asserts two charges of rape and two of indecent assault. These are described as “representative”  We will return to this matter at a later stage.  The summary of facts identifies the complainant as one T B O, born on 12 October 1962.  In early 1975 she was living with her grandmother and elder sister whilst her mother was on an extended visit to Australia.  The appellant lived next door to them with his then wife and an eight year old boy who appears to have been his wife’s son.  The complainant visited regularly, and the appellant showed her much attention, taking her on outings and to his place of employment where he allowed her to drive a forklift truck.  He often explained sexual activity to her.  It is alleged in the summary that “several indecent assaults and rapes” occurred between 1 January 1975 and 31 August 1975 and others are alleged thereafter.  These periods do not correspond to the periods described in the warrant which are 1 January 1975 to 23 September 1975 and 24 September 1975 to 31 March 1976 for the rape counts, and 1 January 1975 to 23 September 1975 for the indecent assault counts.  It seems that the reason for breaking up the overall period is that a number of incidents allegedly occurred prior to the return of the complainant’s mother from Australia.  Shortly thereafter, she returned to live permanently in Australia.  The complainant then moved into the appellant’s home and lived with him and his wife.  The difference in the dates as between the warrant and the summary of facts may reflect uncertainty about the dates of the mother’s movements.

7                     There are allegations of numerous indecent assaults prior to the mother’s return from Australia.  Many of the assault counts are particularized by reference to surrounding events, but there is also an allegation that the appellant compelled the complainant to engage in oral sex “on several occasions throughout the winter” with no further particulars.  That allegation makes it impossible to total the number of alleged incidents of indecent assault, but there are at least eleven.  There are two allegations of rape during this period, one at a warehouse and the other in a bedroom.  There are allegations of at least twelve indecent assaults in the period after the complainant moved into the appellant’s house, some of which are particularized.  There are also four groups of unparticularized offences of “similar” kind.  Two rapes are alleged to have occurred in this period – one in the complainant’s bedroom and one whilst the family was visiting the appellant’s mother.

Representative or Specimen Charges

8                     There has been no attempt to identify the counts in the warrant by reference to the summary of facts.  When this aspect of the matter was raised, our attention was drawn to the written submissions made on behalf of New Zealand before Atkinson J.  Paragraphs 4 and 5 are as follows:-

“4.       A warrant for Bannister’s arrest was issued in New Zealand on 5 March 1998 by his Honour Judge R L Kerr of the New Zealand District Court in Auckland.  The charges against him are:-

(a)       Two counts of raping a female under s 128(1)1 of the Crimes Act 1961 (NZ): 14 years imprisonment;

(b)       Two counts of indecent assault on a girl aged twelve to sixteen years under s 134(2a)of the Crimes Act 1961 (NZ): 7 years imprisonment.

5.         The charges are of a representative nature and relate to a course of conduct that took place in Auckland between 1975 and 1976.”

As we have previously indicated, the description of the charges as “representative” also appears on the “Caption Summary”.

9                     At this stage the Court expressed concern as to the meaning of the expression “The charges are of a representative nature …”.  After taking instructions, counsel for New Zealand referred to the decision of the Court of Appeal of New Zealand in R v Accused [1993] 1 NZLR 385.  At p 389 Cooke P (delivering the judgment of the Court) outlined what is there described as “the practice of specimen or sample counts”.  Counsel indicated to us that the relevant passage was applicable to the proposed proceedings against the appellant.  This practice appears to be inconsistent with the views expressed by the High Court in S v The Queen (1989) 168 CLR 266.  Cooke P said, referring to that decision:-

“The judgments in that case in the High Court of Australia and the Court of Appeal of Western Australia make no reference to the practice of specimen or sample counts, a practice established in New Zealand and, as we understand it, in England also.  The practice is not confined to sexual abuse charges (it may be used in theft cases, for example) but it has particular relevance to such charges when a course of conduct is alleged.  If the evidence available to the Crown in the depositions or preliminary written statements enables a charge to be made with considerable specificity as to date or place – eg within a few days of the complainant’s 12th birthday in her bedroom in the family home in a certain town – the prosecution should word the count accordingly, relying if appropriate on the evidence of conduct not separately charged as ‘similar fact’ evidence. …

In sexual abuse cases the specimen charge practice is commonly followed where the evidence of the complainant and any other prosecution evidence does not enable more particularity than that the conduct alleged occurred a number of times over quite a long period, such as a year or more.  The instant case is in that class.  As regards the five counts, counsel for the accused does not contend that the Crown could give any further particulars than have in fact been given in the indictment as presented.  Counsel for the Crown has made it clear that four of the five counts are specimen charges but that count 6 is not; it refers to a specific occasion.  Clearly count 6 is a proper and sufficient charge.  What now follows is directed only to counts 1, 2, 5 and 9.

In the class of case illustrated by those four counts the practice is to specify in the count the period shown by the complainant’s evidence and to allege a crime (eg rape or indecent assault) during that period.  Any further available descriptive particulars of the alleged offence should be added, as has been done in the present case.  To obtain a conviction the prosecution must then satisfy the jury beyond reasonable doubt that at least one criminal act of the description alleged was committed by the accused during that period.  The trial Judge in S v R directed in that way and, with great respect to the High Court of Australia, we are unable to fault that direction unless further and better particulars were available, or there were features of that case distinguishing it from ordinary specimen charge cases in this field; or unless there is some special rule of Australian law which precludes specimen counts.  Being concerned with principle, we need not and probably could not adequately go into those possibilities.  And whether the result in the High Court of Australia of S v R was a just one in the particular circumstances of that case is certainly not a matter on which a New Zealand Court should venture any opinion.”

10                  Cooke P then endorsed the dissenting opinion of Brennan J (as his Honour then was) in S.  We must now consider the views of the majority in S to ascertain the extent of the difference between the New Zealand and Australian practices. 

The Australian Position

11                  In S the applicant for leave to appeal was charged with three counts of incest.  The first count was said to have occurred between 1 January 1980 and 31 December 1980; the second, between 1 January 1981 and 31 December 1981; and the third, between 8 November 1981 and 8 November 1982.  Further particulars of the charges were sought but refused.  In her evidence the complainant disclosed numerous acts of intercourse.  She said that the first occurred in about 1979 or 1980 when she was fourteen years of age.  She was born on 8 November 1965, so that act may or may not have occurred during the first period particularized.  She said that other acts of intercourse occurred over the next two years until she left home at the age of seventeen years.  The only acts of which she was able to give specific details were the first incident to which we have already referred and another incident during which  the accused wore some of his wife’s clothing.  There was no way of attributing this incident to any one of the three periods specified in the indictment.  At p 274-61 Dawson J said:-

“As I have said, the three counts in the indictment were framed in a permissible way.  Each charged only one offence and gave rise to no duplicity.  Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment.  But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count.  Because of this there was what has been called a ‘latent ambiguity’ in each of the counts … . That ambiguity required correction if the applicant was to have a fair trial.

The material before us does not reveal whether the ambiguity was apparent by reference to the depositions at the time that the applicant made application for particulars.  If it was, it may have been appropriate for the trial judge to have ordered that particulars be given identifying the offences charged, if not by reference to time, by reference to other distinguishing features.  If at that stage such a course was inappropriate and it was necessary for the prosecution to call its evidence for the precise nature of the defect in the proceedings to emerge, the prosecution ought to have been required as soon as the defect became apparent to elect by indicating which of the offences revealed by the evidence were the offences charged.  In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the separate occasions alleged.  Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial …  . 

There was, I think, obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged.  There was the additional embarrassment that the years in the second and third counts overlapped so that if an occasion fell within the overlapping period it was not possible to determine whether it was an offence charged by count two or by count three.

The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence.  He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi.  Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified.  It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant.  An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.

Not only was the applicant embarrassed in putting his defence, but as the prosecution was not put to its election, the trial proceeded in a manner which made it impossible to deal with questions of the admissibility of similar fact evidence …  .  True it is that evidence of acts of intercourse other than those charged may have been admissible as similar facts of sufficient probative force to warrant their admission in evidence.  I attempted to explain in Harriman v The Queen [(1989) 167 CLR 590] that when such evidence is admitted in a case of this kind its relevance is said to lie in establishing the relationship between the two persons involved in the commission of the offence, or the guilty passion existing between them, but it is in truth nothing more than evidence of a propensity on the part of the accused of a sufficiently high degree of relevance as to justify its admission ….  Obviously that high degree of relevance can only occur where the evidence of propensity is related to a specific offence upon an identified occasion.  If no occasion is identified, the necessary relationship cannot exist.  In this case, where there was a failure to identify the occasions upon which the offences charged took place, the whole of the evidence was, in effect, evidence of propensity which could not be related to the offences charged because of the lack of identification of those offences.  In other words, the prosecution case sought to go no further than to establish that an incestuous relationship existed between the applicant and his daughter – which is to do no more than establish a particular kind of propensity – and to assert the guilt of the applicant upon three unspecified occasions during the existence of, and upon the basis of, that relationship.  Far from establishing the necessary high degree of relevance, to proceed in this way was to obtain the conviction of the applicant upon evidence of propensity unrelated to a specific offence upon an identified occasion.  Such a course was clearly objectionable.

The case having proceeded as it did, it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict.  That, of course, would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasions.  Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions.  As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged.

Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit. …”

12                  At p 277 his Honour continued:-

“At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice …  .”

13                  At p 281-2, Toohey J said:-

“The objection in cases such as the present one is that the accused does not know with any certainty the charge he has to meet.  …

…

… This issue was considered by Dixon J in Johnson v Miller [(1937) 59 CLR 467 at p 489] where his Honour said:

‘… the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based.  In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint.  For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.’

Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies.  But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.  This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the applicant by reason of the failure to do so.  The matter was left to the jury on the basis that so long as they were satisfied an act of carnal knowledge occurred during a period specified in a count in the indictment, they could convict the applicant on that count.  The trial miscarried for that reason.”

14                  At p 283 his Honour continued:-

“This trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant “carnally knew” the complainant.  Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant, but as the offences themselves.  In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count.  There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment.”

15                  At pp 284-8, Gaudron and McHugh JJ said:-

“The rule against duplicitous counts in an indictment originated as early as the seventeenth century. …  It may be, … that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death.    However, the rule against duplicitous counts has, for a very long time, rested on other considerations.  One important consideration is the orderly administration of criminal justice.  There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.  …

The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.  …  Of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be, … that on occasions the uncertainty is not ‘such as to disable the defendant from meeting the charge’.

The matters which go to the orderly administration of justice are not unrelated to the consideration that a duplicitous count may be productive of prejudice.  If the matter proceeds to trial, there is the possibility that evidence will be wrongly admitted or that incorrect directions will be given to the jury.  There is also the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one. … 

The problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged.  Two such problems were made explicit in Johnson v Miller [(1937) 59 CLR 467].  In that case one offence was charged, but the prosecution announced its intention of calling evidence of some thirty possible offences.  Dixon J pointed out that, unless similar fact evidence were admissible,  the admission of ‘evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule’.  The second problem identified in that case concerned the different defences that might be available  to the different offences in respect of which it was proposed to call evidence.  In relation to that problem Evatt J said that the course proposed by the prosecution would convert ‘a strictly judicial function – that of determining guilt or innocence of a single offence – into an administrative commission of inquiry into the question whether … when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions’.

The question of prejudice goes somewhat deeper than the question whether there was an effective denial of an opportunity to call alibi evidence.  The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J in relation to the course proposed in Johnson v Miller.  Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed.  Additionally, by reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance.

Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged.  Ordinarily those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged.  …  However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice. …

The trial of the applicant was fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury.  …

The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts.  Even leaving aside the problem referrable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts.  Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods.  In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant’s  guilt of an individual act answering to the description of the offence charged.  Assuming the verdicts returned by the jury to constitute verdicts in the accepted  sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty ‘would plainly have been the same’.  …  That being so, it cannot be said that there was no substantial miscarriage of justice.”

16                  In KBT v The Queen (1997) 191 CLR 417, the High Court again considered the problem of multiple unparticularized counts of offences of a sexual nature.  At p 424, the majority (Brennan CJ, Toohey, Gaudron and Gummow JJ) said, citing the last paragraph from S set out above:-

“Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act.  It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts... .  Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree.  It follows that the accused was deprived of a chance of acquittal that was fairly open.

17                  In R v Accused virtually no consideration was given in the reasons to the concerns expressed by the majority of the High Court in S, the Court of Appeal accepting the dissenting views of Brennan J, which were apparently consistent with the existing New Zealand practice.  We have quoted at length from the reasons of the Justices constituting the majority in order to identify the depth of concern demonstrated by their Honours at the course adopted in the trial in that case which was similar to the so-called “specimen charge practice” endorsed by the New Zealand Court of Appeal.

Prospects of a Fair Trial

18                  Such a difference in  procedure may be relevant on an application for extradition.  In Binge v Bennett (1988) 13 NSWLR 578, the Court of Appeal in New South Wales considered an application for “return” from that state to Queensland pursuant to the Service and Execution of Process Act 1901 (Cth), the terms of which were similar to those which currently apply to extradition to New Zealand.  The appellants there wished to argue that it would be unjust or oppressive to order their return to Queensland because of the alleged infrequency with which Aborigines served on juries in that State, perceived bias of potential jurors against Aborigines, bail issues and prison conditions.  At first instance, evidence as to these issues was excluded.  At p 591, Kirby P said:-

“…  The very existence of the provision in the Act contemplates, as I pointed out in Lewis v Wilson [Court of Appeal, 18 December 1987, unreported], that cases will arise where, notwithstanding the Federal system, it will be ‘unjust or oppressive’ to return an accused person to another state.  Therefore, that possibility being postulated, the claimant who asserts that it is so in his or her particular case, must be entitled to prove, by relevant admissible evidence, the facts from which he or she seeks to have the court derive that conclusion.”

19                  At p 596-7 Mahoney JA said:-

“The words ‘unjust and oppressive’ given their ordinary meaning have a broad connotation.  I do not think that, so understood, they exclude matters going to, for example, the nature and incidents of the justice system to which the person in question is to be returned or to the circumstances or mode of his treatment pending trial in that system.  It may well be, for example, that those words, used in the context in which they are used in other countries, would authorize an inquiry by the court as to whether the state of the justice system or the facilities of it in the country to which the person was to be returned were such as to fall within these provisions …  .

In effect, the argument that has been put forward in the present case and which found favour with Campbell J was, I think, that notwithstanding that the words ‘unjust or oppressive’ according to their ordinary meaning may well include matters of the present kind, yet some limitation is to be placed upon them and that these matters cannot be a subject of examination in Australia under the Service and Execution of Process Act (Cth), s 18.  The suggestion is, to put the matter broadly, that these matters are not open for examination and are to be left essentially to the States or Territories in question.

I do not think that there is an indication in the legislation of such a limitation.  I am conscious, as indeed Campbell J and the judges of the courts in the cases to which reference was made were conscious, of the fact that s 18 operates in the context of the Australian Federation.  But I do not think that, giving proper effect to the words ‘unjust or oppressive’, it is possible to say that no circumstances can be conceived in which the nature of the justice system or the incidents of it could constitute a case of injustice and oppression within those provisions.

I do not mean by this that such a matter may readily be established.  What is unjust or oppressive must be judged according to the society in which in Australia we now live.  That society and its standards may be open to criticism.  It may in some respects, require change.  But the context in which these words should be understood is the context of the Australian Federation as it exists from time to time.  Taking these matters into account I do not think it is possible to say that, for example, no case could in any circumstances be made out which would fall within s 18(6)(c) of the kind here in question.  Thus, for example, it might be able to be established that by the warrant a person was to be returned only to a particular court and that in that court at the particular place and time a fair trial would not be able to be had.  It is the experience of the court systems in the Australian states.”

20                  McHugh JA took a slightly different view, but at p 599 his Honour said:-

“No doubt the evidence needed to make out such a case must be weighty.  But I do not think that it is an answer to the contention of the appellants that their evidence is admissible to say that the judges of Queensland will or should be able to protect them against injustice or oppression.  The existence of the appellate and supervisory jurisdiction of the Queensland Supreme Court as well as the inherent and invested powers of the first instance courts in Queensland is a powerful factor to be weighed against the contentions for the appellants.  But it is not decisive.  Moreover the Queensland court system can do little to protect the appellants against the alleged abuse in the Queensland prison system.

In my opinion the evidence which they called was admissible to prove that they cannot obtain a fair trial and that there is a reasonable apprehension that the decision of the Queensland courts would be biased and that the Queensland prison system is oppressive.”

21                  The matter was remitted for rehearing at first instance.  In subsequent proceedings, extradition was refused on the basis of a finding that it would be unjust and oppressive to return the alleged offenders to Queensland.  See Binge v Bennett (1989) 98 FLR 193.

22                  That the incidents of the system to which the alleged offender is to be extradited are relevant considerations for present purposes also appears from the decision of the Full Court of the Supreme Court of Queensland in Clear v Holyoak [1993]1 Qd R 376.  At p 379, Derrington J said of the analogous provisions of the Service and Execution of Process Act:-

“Because of comity between the States it is accepted as a general proposition that injustice or oppression will be remedied by the State to which the person is to be returned …; and, the onus being upon that person to show injustice or oppression, a stringent test is adopted where the system of another State is questioned … .  But where it is seen that the product of the State’s system will in fact lead to an unjust or oppressive result to the person who is returned to it, then the refinements of these considerations must give way to the clear prescription of the statute.”

23                  In Perry v Lean (1985) 39 SASR 515 the Full Court of the Supreme Court of South Australia considered those same provisions.  At p 519 Jacobs J said of s 18(6) which is of similar effect to s 34(2) of the Act:-

“… the reported cases in which that section has been successfully invoked recognize that the question arising under that section, namely whether ‘extradition’ is unjust or oppressive, is not to be answered by deciding whether it is unjust or oppressive to charge the defendant.  The question is whether it would, on the particular facts of the case, be unjust or oppressive to remove the accused into the jurisdiction of the court in which the charge has been preferred.”

24                  At p 521 his Honour quoted with apparent approval the following extract from the judgment of Tucker LJ in Re Henderson [1950] 1 All ER 283:-

“These are all matters which can – and, no doubt, will - be considered by the tribunal of any civilized country which is dealing with a criminal matter.  The length of time that has elapsed will, no doubt, be a relevant consideration for this tribunal to consider in weighing the evidence, but there is nothing in the material evidence which would, in my view, show that it is impossible for the applicant to obtain justice. …  I think that the kind of matters with regard to which this Court would act would be where it appears that the contemplated proceedings, although, perhaps, lawful by the law of the country concerned, are really going to be conducted in a way contrary to natural justice or contrary to our ideas of it.”

25                  At that page, Jacobs J continued:-

“No two cases are alike, and what the court is required to do is to weigh the whole of the circumstances in order to determine not merely whether there is injustice or oppression, but whether it would be on balance injust and oppressive ‘to return the person’, for that is the critical, and indeed the only, issue.”

Mohr J appears to have taken a similar view.

26                  We conclude that it is appropriate, in considering whether, “for any other reason” it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive.  Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community.  No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar.  This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels.  We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country.  However, on this very important procedural point, the two systems have diverged.  In considering the present application, we can only apply the decision of our own ultimate appellate court.

27                  We do not consider that every minor difference in procedure would justify our declining extradition.  Such a step will only be justified if the procedure likely to be followed in the country to which extradition is sought will render it unjust or oppressive to surrender the alleged offender.  In the present case, injustice or oppression must be measured by considering the High Court’s view concerning the practice which will be followed in New Zealand, which view is that it is most unlikely to result in a fair trial.  The High Court has recognized that some aspects of the potential unfairness may be avoided by appropriate directions to the jury but clearly, not all of the problems can be met in this way.  For example, there is nothing in R v Accused suggesting how a New Zealand court will ensure that all members of the jury base conviction on any count upon substantially the same alleged conduct.  This is not merely a theoretical problem, but a real danger in the view of the High Court.  In R v Accused, the New Zealand Court expressly approved the direction given by the Trial Judge in S.  The High Court clearly considered it to be inadequate.  Thus we conclude that proceedings in New Zealand would probably take the form expressly disapproved in S.

New Zealand’s Intentions

28                  Counsel has indicated that New Zealand considers the four charges as prescribed in the warrant to be “representative” or “specimen” charges and that the prosecution wishes to proceed in accordance with the practice outlined in R v Accused.  We wonder whether that course is appropriate or necessary, given that, many of the charges outlined in the summary of facts are clearly particularized and not of the kind contemplated in R v Accused. There are four rape counts identified in the summary of facts, two in each of the specified periods.  Each is easily distinguishable from the others.  In those circumstances, we do not understand why there should be a prosecution for “representative” or “specimen” charges of rape.  We see no reason why the appellant could not be charged with all four counts, either on one indictment or on separate indictments, unless the complainant has made further allegations beyond those in the summary.  Similarly with respect to the indecent assault counts, there seems to be no good reason why the appellant could not be dealt with for numerous particularized counts.  If that were done, there would be little point in prosecuting him in respect of the other, unparticularized allegations.

Conclusion

29                  We can, however, act only upon the evidence as it is before us and the submissions made in respect of that evidence.  The intimation made on behalf of New Zealand that it intends to proceed upon the four counts as representative charges in the way discussed in R v Accused leads us to conclude that it would be unjust or oppressive to return the appellant to New Zealand.  It may be possible for a further application for extradition to be made in a way which resolves the difficulties which we have identified.

30                  Out of deference to Atkinson J, we point out that the ground upon which the appeal has been decided was not ventilated before her Honour, although it arose out of the material then available.  That material, however, had a significance which could only be appreciated by reference to R v Accused.

31                  For present purposes, it is not necessary for us to consider the distinction between “unjust” and “oppressive” drawn by Lord Diplock in Kakis v Government of the Republic of Cyprus (1978), 1 WLR 779.

Other Matters

32                  It is not strictly necessary that we deal with the other arguments advanced in support of the appeal.  However it may be helpful in any future proceedings if we make some general observations.

The Convention Point.

33                  As to the application of the Convention, we suggest that the extradition of the appellant to New Zealand is unlikely to have any adverse effects upon his children.  It will require his absence only for the time necessary to complete the prosecution.  As was pointed out in argument, there is probably no reason why they could not go with him.  In truth, the threat to the welfare of the children lies in the possibility that he will be convicted and sentenced to imprisonment.  Any detriment will be attributable to his conviction and sentence, not to his extradition.  The interests of children are often considered in the sentencing process.  Perhaps that is the time at which any argument concerning the Convention should be raised.  We have not been told whether New Zealand is a party to it. That would be a necessary condition precedent to raising the current argument in the course of the sentencing process.  In any event, we do not consider that the children’s interests would necessarily be best served by refusing extradition. 

Effects on the Family

34                  As to the broader question of the relevance of the interests of the appellant’s family in determining the matters prescribed by s 34(2), we are inclined to the view expressed by Green CJ in White v Cassidy (1979) 40 FLR 249 at p 255 where his Honour said:-

“I do not regard the hardship or prejudice to his wife and children that the respondent’s return to New South Wales might cause as being relevant considerations by themselves: the injustice or oppression must relate to the respondent himself.  But in so far as those considerations affect the respondent, and in so far as they affect his attempts to start a new life, they are material to the question of whether his return would be oppressive to him.”

Delay

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

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

Orders

37                  We order that:-

(1)        The orders made by Atkinson J in the Supreme Court of Queensland, dated 23 October 1998, be set aside.

(2)        The order of R Kilner Esq, SM, that William Tuhuru David Bannister be released, be confirmed.

Associate:

Dated:              1 April 1999