FEDERAL COURT OF AUSTRALIA

Zurowski v Government of New Zealand [2005] FCA 1064

EXTRADITION — review of a decision of a magistrate to surrender the applicant to New Zealand — whether unjust to surrender the applicant — whether prima facie case exists — whether photographic identification evidence obtained improperly or unfairly — role of Australian courts in resolving arguable questions of the admissibility of evidence — whether New Zealand court would be bound to exclude the evidence — whether sufficient evidence to establish an intention in common with others to import a controlled drug

Extradition Act 1988 (Cth), s 34(2)

Crimes Act 1966 (NZ), s 66(2)

Kenneally v New Zealand (1999) 91 FCR 292 followed

Alexander v The Queen (1980) 145 CLR 395 discussed

Blick v The Queen (2000) 111 A Crim R 326 discussed

Knight v Brown (2004) 183 FLR 135 discussed

R v Russell [1977] 2 NZLR 20 cited

Bates v McDonald (1985) 2 NSWLR 89 followed

Thorp v Abbotto (1992) 34 FCR 366 cited

Coco v Shaw [1994] 1 Qd R 469 cited

O’Donnell v Heslop [1910] VLR 162 cited

Festa v The Queen (2001) 208 CLR 593 cited

LexisNexis, Cross on Evidence: New Zealand Edition

CINDY ELIZABETH ZUROWSKI v GOVERNMENT OF NEW ZEALAND AND HIS HONOUR PETER HENRY LAURITSEN, DEPUTY CHIEF MAGISTRATE OF THE MAGISTRATES’ COURT OF VICTORIA

VID160 OF 2005

NORTH J

5 AUGUST 2005

MELBOURNE

THE COURT ORDERS THAT:

1.             The order made by the second respondent on 21 February 2005 that the applicant be surrendered to New Zealand in relation to the offence of importing into New Zealand, at Auckland, on or about 24 June 2003, together with Gwenda Irene Hutson and Anthony Charles Munnings, a class B controlled drug, namely MDMA or ecstasy, is confirmed.

2.             The order of the second respondent made on 21 February 2005 that the applicant, pending the execution of a warrant surrendering her to New Zealand, be committed to prison, is confirmed.

3.             The applicant pay the first respondent’s costs of this application.

4.             The applicant have liberty to apply to the Court seeking a variation of Order 3 by filing and serving a notice of motion no later than 10 August 2005.

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

REASONS FOR JUDGMENT

1                     On 21 February 2005, the second respondent, the Deputy Chief Magistrate of the Magistrates’ Court of Victoria, ordered that the applicant, Cindy Elizabeth Zurowski, be surrendered to New Zealand pursuant to s 34(1)(c) of the Extradition Act 1988 (Cth) (the Act).  On 3 March 2005, the applicant filed an application in this Court under s 35(1)(a) of the Act for a review of that order.

background

2                     On 4 May 2004 an information was laid in New Zealand alleging that the applicant, together with Gwenda Irene Hutson (Hutson) and Anthony Charles Munnings (Munnings), on or about 24 June 2003, imported a Class B controlled drug, commonly known as ecstasy, into New Zealand contrary to ss 6(1)(a) and 6(2)(b) of the Misuse of Drugs Act 1975 (NZ).  On 14 February 2005 a warrant for the arrest of the applicant in relation to the offence was issued in New Zealand.  That warrant was indorsed, pursuant to s 28 of the Act, by a magistrate in Victoria on 17 February 2005.  On 18 February 2005, the applicant was arrested in Melbourne pursuant to the indorsed warrant.  On the same day New Zealand made a request under s 34(1)(b) of the Act to a magistrate in Victoria to conduct proceedings to determine whether to order the surrender of the applicant to New Zealand.  On 21 February 2005, the Deputy Chief Magistrate made the order which is the subject of this application for review.  Pursuant to s 35(6)(d) of the Act, the review by this Court is by way of rehearing.

the central issue

3                     The central issue is whether the applicant has established that she should not be surrendered to New Zealand.  Mr Dane QC, who appeared with Ms Anagnostou as counsel for the applicant, argued that the applicant should not be surrendered to New Zealand on the basis of s 34(2) of the Act, which provides that:

If the magistrate is satisfied by the person that, because:

(a)               the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;

(b)               if that offence is an offence of which the person is accused — the accusation was not made in good faith or in the interests of justice; or

(c)                a lengthy period has elapsed since that offence was committed or allegedly committed;

or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released.  (emphasis added)

He submitted that it would be unjust to surrender the applicant to New Zealand because there is either no evidence against the applicant, or alternatively the evidence against her is insufficient. 

4                     The applicant bears the onus of proving on the balance of probabilities that her case falls within s 34(2).  The proper approach to s 34(2) in a case such as this was stated by a Full Court of this Court in Kenneally v New Zealand (1999) 91 FCR 292 at [54]–[56] (Kenneally):

… if the evidence upon which the charges have been brought against the appellant is shown to be so weak that, even taken at its highest, no magistrate would commit him for trial, upon a proper application of the traditional test for committal (as to which see Thorp v Abbotto (1992) 34 FCR 366 at 370 per Lockhart J and Wentworth v Rogers [1984] 2 NSWLR 422), this Court should not permit the appellant to be extradited. The fact that the traditional test for committal has been modified in recent years in some States, in order to filter out more cases which are simply too weak to justify trial before a jury, only fortifies us in our view that s 34(2) of the Act was intended to operate in the manner for which the appellant contends.

That is not to say that the task which confronts a person who seeks to resist extradition to New Zealand upon the ground that there is no evidence, or insufficient evidence, to support the charges will be anything other than daunting. It will rarely be the case that the minimal requirements for committal, as they have been traditionally understood, will not be satisfied. For example, the fact that there are competing hypotheses available regarding the evidence relied upon by the prosecution will not be sufficient to justify a refusal to grant extradition: see Thorp v Abbotto.

Nevertheless, where the Court is satisfied, upon all of the evidence before it, that the evidence taken at its highest for the prosecution fails to disclose a prima facie case, and it is clear that it has available to it no other evidence of any significance, the words of s 34(2) suggest that extradition should be refused.  (emphasis added)

The FIRST Respondent’s case against the applicant

5                     It is convenient at this point to set out the evidence before the Court which the first respondent said establishes a prima facie case against the applicant.

6                     The first respondent relied on two affidavits sworn by Customs officers, namely Kristine Henry-Brown and Helen Louise Veysey, on 19 April 2005, and one affidavit sworn by the police officer in charge of the investigation into the alleged offence, Detective Sergeant John Grant Sowter, on 21 April 2005.  Some of this material was additional to or in substitution for the material that was before the Deputy Chief Magistrate, but its introduction on a rehearing was permitted by s 35(6)(d) of the Act.  Those affidavits establish the following matters.

7                     Munnings and Hutson travelled from Auckland, New Zealand to Frankfurt, Germany on 18 June 2003, arriving in Germany the following day.  They departed Germany on their return journey on 22 June 2003, arriving in Auckland two days later, on 24 June. Munnings was thereupon apprehended at Auckland International Airport with about 15,000 ecstasy tablets in his luggage.  He pleaded guilty to importation of the drugs, and was sentenced to a term of eight years’ imprisonment.  An appeal against the severity of that sentence was unsuccessful: Munnings and Hutson v The Queen [2005] NZCA 38.

8                     The New Zealand police allege that Hutson was the overseer of the operation and travelled on the same plane as Munnings in order to monitor the progress of the importation.  She pleaded not guilty to the charges against her and was tried in the Auckland District Court.  Her first trial ended with the jury failing to agree, and a second trial was terminated before a verdict was reached.  At her third trial she was convicted and sentenced to a term of eight years’ imprisonment.  However on 9 March 2005, the New Zealand Court of Appeal allowed Hutson’s appeal against conviction on the ground that the trial judge had failed to direct the jury properly, and ordered a further new trial: Munnings and Hutson v The Queen (supra).

9                     It is alleged that the applicant assisted the importation by purchasing the airline tickets used by Munnings and Hutson to travel between New Zealand and Germany.  Her liability is alleged to fall within s 66(2) of the Crimes Act 1961 (NZ), which provides that:

Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

10                  The allegations against the applicant are as follows.  She arrived in Auckland on a flight from Australia on 10 June 2003.  On that same day, a person booked flights in the name of Hutson at the Flight Centre travel agency in Queen Street, Auckland.  The customer paid a deposit of NZD100 in cash.  She said she was a friend of Hutson.  She gave an address for Hutson which was Hutson’s actual address in Australia.  The same person returned on 12 June to collect the tickets.  She paid the balance of NZD2551 in cash.  The consultant who dealt with the customer on both occasions was Leanne Marie Dixon (Dixon).  Dixon made a statement to police which included the following reference to the customer who purchased the ticket for Hutson:

This female was a short small built girl with her hair tied back.  I estimated that she was aged in her mid to late 20’s and spoke with an Australian accent.

On 26 August 2003 I was shown by Customs Officer VEYSEY a photo montage board containing 9 photographs of similar looking females.

I was able to identify the female shown in the photograph numbered 6 [which depicted the applicant] as the female that booked the tickets for the person Gwenda HUTSON on 10 June 2003.

11                  On 11 June 2003, a person booked tickets in the name of Munnings on the same flights that had been booked the previous day in the name of Hutson.  This booking was made at another Flight Centre agency in Auckland, namely in Ponsonby Road.  The customer again paid a cash deposit of NZD100.  She said her name was Karen, and that she was booking the ticket for her brother, whom she named as Anthony Munnings.  She gave an address for Munnings which was his actual address in Bundaberg, Queensland.  The consultant who dealt with the customer that day was Dyane Teresa Bunter (Bunter).  Bunter made a statement which included the following reference to the customer who purchased the ticket for Munnings:

I would describe her as a female Caucasian, aged in her late 20’s to early 30’s.  She was approximately 165cm in height and of slight build.  She had dark coloured hair, which I believe was not tied up.  She was well dressed and had a friendly and relaxed attitude.

On 11 September 2003 I was shown a photo montage board by Detective Sergeant SOWTER of the Auckland Police Drug Squad.  This photo board depicted nine similar looking females.

I believe that the female shown as number 6 looks like the female that I dealt with on 11 June 2003 who gave me her name as ‘Karen’.

12                  On 12 June 2003, the same customer returned and paid NZD2697 in cash for the balance of the ticket to another consultant, Nicola Tracy Sutton (Sutton).  Sutton recalled that the person who paid her for the ticket on 12 June 2003 had dealt with Bunter on the previous day.  The customer also told Sutton that the ticket was for her brother, Anthony Munnings, who was in Australia at the time.  Sutton made a statement in relation to the transaction which included the following reference to the customer:

This female requested that the travel ticket be delivered to our office urgently.

Our ticket office is in Emily Place in Auckland City so I arranged for the ticket to be couriered to us.  This is not normal practice as the courier costs are incurred by the individual Flight Centre consultant, not the customer.

I advised this female that it should arrive before midday that day.

I believe that soon before midday she returned to the office but unfortunately the travel ticket had not been delivered.

I told her that I would chase it up for her and give her a telephone call as soon as it arrived.  I then wrote her name on the back of our copy of the payment receipt as ‘Julia’ and recorded her cellphone number as ‘(021) 1233031’.

When the ticket did arrive I contacted this female on that cellphone number and she returned soon after and uplifted it.

That was the last dealing I had with her.

On 9 September 2003 I was shown a photo montage board by Customs Officer VEYSEY that depicted nine similar looking females.  I believe that the female positioned at number 6 looks familiar to me.  I believe that she is the female that I had dealt with on 12 June 2003 and the same female that our ‘Temp’ Diane [sic] BUNTER dealt with on 11 June 2003.

13                  On 12 June 2003, the applicant left Auckland on a flight to Australia.

14                  The applicant made a further trip from Australia to New Zealand, arriving on the afternoon of 22 June 2003 and returning to Australia on 28 June 2003.  Shortly before 7:30pm on 22 June, a call was made from a public payphone (said by Detective Sergeant Sowter to be located on Queen Street, Auckland) to the New President Hotel.  The caller made a booking on behalf of Hutson for her arrival back in Auckland.  At this time Hutson was leaving Frankfurt to return to Auckland, and could not have made the booking herself.  Shortly before 10:30am the following day, a call was made from a public payphone (said by Detective Sergeant Sowter to be located on Ponsonby Road) to the same New President Hotel.  The caller made a booking on behalf of Munnings in preparation for his return to Auckland.  The first respondent suggests that an inference is available from the circumstances that it was the applicant who was responsible for booking the accommodation of Hutson and Munnings for their return to New Zealand.

The applicant’s submissions on review

the photographic identification evidence

15                  The case against the applicant depends on the identification by Dixon, Bunter and Sutton of the applicant as the purchaser of the airline tickets used by Munnings and Hutson.

Alleged deficiencies in the photographic identification evidence

16                  The identification evidence was attacked by the applicant in a number of ways. First, the applicant argued that the evidence of Sutton and Bunter is not a positive identification of her.  Sutton said that she believed that the applicant was the purchaser of the airline tickets, while Bunter could only say that she believed that the applicant looks like the purchaser of the tickets.  Dixon however was in a position to say that the applicant was the purchaser. 

17                  Second, the applicant contended that the identifications were only made by reference to a photoboard, and that the photoboard was constructed in a way that was so unfair or improper as to render it, and the evidence obtained through its use, inadmissible in evidence against her.  She argued that the flaws in the construction of the photoboard did not give the witnesses plausible alternatives from which to choose, but rather directed their attention to the photo of the applicant.  Some of the more telling examples of the unfairness or impropriety suggested by the applicant are: 

·                    All of the photos other than that of the applicant are in a landscape style, that is to say, the height of the photo is shorter than its length, whilst the photo of the applicant is in a portrait style, that is to say, the height is greater than the length of the photo.

·                    The photo of the applicant is larger than each of the other eight photos.

·                    The background colour in the applicant’s photo is different to the background colours of the eight remaining photos (each of which is similar in colour to the background of the others in this group of eight).

·                    All of the photos, apart from that of the applicant, are taken face-on with the eyes looking straight ahead, whilst the photo of the applicant is taken with her eyes slightly averted.

·                    Bunter described the customer’s hair as dark. Six of the eight subjects other than the applicant have blonde hair, and only one of the remaining two subjects has dark hair.

·                    Dixon said that the customer’s hair was tied back. However the only dark-haired subject other than the applicant has long hair.  (It should be noted, however, that Bunter said that the customer had dark hair which was not tied back.)

·                    The photos of the other eight women were taken from prison sources.  However the photo of the applicant was taken from her passport, and was distinguishable as such.  That fact would attract the attention of these witnesses who are travel agents, and, in the case of Dixon, who had described the applicant as speaking with an Australian accent. 

·                    The Victoria Police manual specifies that photo identification folders should contain eleven photos plus the photo of the suspect, whilst in the present case the photoboard contained nine photos in total, thereby unfairly narrowing the choice available to the witnesses. 

18                  Third, the construction of the photoboard was also said to be unfair because Detective Sergeant Sowter’s affidavit does not disclose how he came to fasten on the applicant as a suspect, and hence include her photograph on the photoboard.  The applicant argued that there must be other evidence which led to suspicion falling on the applicant, and that that evidence must be inadmissible.  Despite the inadmissibility of that evidence, it has been used, so it was said, through the detection process.

19                  Fourth, the applicant argued that there was no evidence of identification by the three witnesses prior to the photos being shown to them.  (This submission is probably factually wrong in relation to Dixon and Bunter.  Their statements seem to indicate that they gave a verbal description of the customer before they were shown the photoboard.)

20                  Fifth, the applicant argued that the use made of the photoboard was improper or unfair, and hence the evidence of photographic identification is inadmissible.  Again the applicant referred to numerous features of impropriety or unfairness, including:

·                    The photoboard was not used as part of the detection process only, as it should have been, but was used when the detection period had finished, in that Munnings and Hutson had been arrested and charged. 

·                    The photoboard was shown to the witnesses by the investigators and not by independent police officers of rank as would be necessary to ensure fairness.  This requirement is recognised in the Victoria Police manual.

·                    The identification of the applicant was not corroborated by the officer showing the photoboard.

·                    There is no evidence as to the instructions given by the officers to the witnesses, or of the reactions of the witnesses to being shown the photos.

·                    The applicant was not present when the photoboard was shown to the witnesses, and hence could not verify the propriety of the process.

·                    Bunter and Sutton work together and were shown the photoboard two days apart, but there was no evidence that they were instructed not to collaborate in respect of the identification.

21                  Finally, the applicant argued that the statements of Dixon, Bunter and Sutton were so obviously unreliable that they would not be admitted into evidence against her.  Each of the statements described the nine photos on the photoboard as depicting ‘similar looking females’.  It was contended that the Court, viewing the photos, could see that the nine photos depicted very different females.  It follows that, if the witnesses cannot be relied upon for this evidence, then this Court should not rely upon the statements at all in determining whether there is a prima facie case against the applicant.

The principles said to govern the admissibility of photographic identification evidence

22                  Mr Dane referred to the well-recognised dangers in the use of photographic identification evidence, and contended that, in view of the factual submissions made by the applicant that are set out in the immediately preceding paragraphs of these reasons, the photographic identification evidence in this case was not admissible against her.  He relied on Alexander v The Queen (1980) 145 CLR 395 (Alexander), in which it was established that:

… as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible.  However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused.  It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

(at 402–03 per Gibbs CJ. See also at 430 per Mason J to the same effect, with Aickin J concurring at 437).

23                  Several recent relevant examples of the application of Alexander were referred to.  In Blick v The Queen (2000) 111 A Crim R 326 (Blick), police had presented the victim of an armed robbery with twelve photographs, one of which was a photograph of the accused.  The victim had previously told the police that he recalled that the offender had a goatee beard.  However amongst the photographs, the only one showing a person with a goatee beard was that of the accused.  The NSW Court of Criminal Appeal held that in those circumstances, the probative value of the victim’s identification of the appellant’s photograph was outweighed by its substantial prejudicial effect, and allowed the appellant’s appeal against conviction.

24                  In Knight v Brown (2004) 183 FLR 135 (Knight), police had presented the victim of a robbery with a photoboard containing nine images, one of which was a photograph of the accused.  The victim had already identified his attacker as a person with red hair.  Amongst the photographs only two depicted a person with red hair, and that of the accused was the only one with ‘striking’ red hair. On appeal against conviction by a magistrate, Connolly J of the ACT Supreme Court held that the identification evidence was so tainted by the photoboard’s deficiencies as to render the appellant’s conviction unsafe and unsatisfactory.  The appeal was upheld and the conviction set aside.

25                  Alexander shows that photographic identification evidence is not automatically inadmissible.  Rather, it is prima facie admissible, but the trial judge has the discretion to exclude it if the prejudice to the accused outweighs its probative value.  Thus, when the applicant contended that the photographic identification evidence is inadmissible, she was inviting this Court to determine that, if the applicant were returned to New Zealand and put on trial, the trial judge would be bound to exercise the discretion to exclude the evidence.

26                  The assumption underlying this argument is that it is appropriate for this Court to assess the admissibility of the photographic identification evidence by reference to the law of Australia, rather than the law of New Zealand.  There was no attempt by the applicant to put before the Court the state of the law on the admissibility of photographic identification evidence in New Zealand.  However, from the limited research undertaken by the Court, it appears that the legal position in New Zealand is the same as in Australia: LexisNexis, Cross on Evidence: New Zealand Edition, at [2.33]; R v Russell [1977] 2 NZLR 20 at 27.

The role of the Court

27                  The applicant’s argument raises a question of the proper role of the Court in such an application.  Is it within the scope of the Court’s function to predict how the trial judge would determine a question of admissibility?  As I understand it, the respondent’s position was that the Court should simply not enter upon this question at all.  On the other hand, the applicant contended that such a course was sanctioned by Kenneally.

28                  Kenneally was an appeal to the Full Court of the Federal Court from the judgment of the NSW Supreme Court.  Studdert J had, in Kenneally v New Zealand [1999] NSWSC 869, dismissed an application for review of a magistrate’s decision to surrender the appellant to New Zealand to be tried for offences concerning the supply of drugs.  The evidence tendered on the review to establish the case against the appellant was a recording of a conversation obtained by use of a listening device.  Three transcripts were made of that recorded conversation.  Studdert J had said, at [38]:

… it is inappropriate for me on a hearing of this nature to make a final determination as to what has been recorded in the intercepted conversation.  Sergeant Brazier’s evidence was that, having heard the disc played a number of times, he considered Exhibit C to be an accurate transcript.  Whoever prepared the transcript annexed to Ms Johnson’s affidavit upon which the plaintiff relies would obviously disagree.  It will be for the court hearing the charges against the plaintiff to resolve what the disc has recorded and the significance to be attributed to such evidence.

29                  On appeal, the Full Court said at [41] that the primary judge:

… was plainly correct in declining to embark upon the process of deciding whether Det Sgt Brazier’s version of what was on the transcript should be accepted in preference to the appellant’s expert’s version.

30                  The appellant had argued on appeal that, even accepting Detective Sergeant Brazier’s version of the transcript, the accusation against the appellant was demonstrably without foundation.  In the passage from Kenneally referred to at [4] of these reasons, the Full Court said that if the evidence before a court, taken at its highest for the prosecution, fails to disclose a prima facie case, the appellant should not be surrendered.  At that point the Full Court proceeded to examine the transcript for itself, and concluded at [61] that ‘there is no evidence in the taped conversation to support any of the three charges laid’.  Later in its reasons, the Full Court said, at [67]:

We have already indicated that the evidence relied upon as the basis for the appellant’s extradition fails to establish a prima facie case against him.  The proceedings are, in our opinion, ‘clearly foredoomed to fail’, and would therefore, in this country, be regarded as an abuse of process:  see Walton v Gardiner (1993) 177 CLR 378 at 393.  Were the appellant to be tried in this country on this evidence, a judge would be bound, in accordance with the principles laid down by the High Court in Doney v The Queen (1990) 171 CLR 207, to take this case away from the jury.  The evidence is not merely tenuous or inherently weak or vague — it is incapable of supporting a verdict of guilty.  Moreover, were a jury to convict the appellant on these charges, an appellate court would almost certainly overturn any such conviction as being unsafe and unsatisfactory:  Morris v The Queen (1987) 163 CLR 454; Chidiac v The Queen (1991) 171 CLR 432.  It follows that whatever the precise test that should be applied to gauge the sufficiency of this evidence to support the appellant’s extradition, the test is not met.  (emphasis added)

31                  The applicant placed emphasis on this paragraph, and particularly on the final sentence, which showed, it was submitted, that the Court must not only decide for itself if the evidence discloses a prima facie case, but also resolve evidentiary questions more generally.  Without entering into these matters, the Court would not have considered the questions referred to, namely, would an appellate court overturn a conviction as unsafe or unsatisfactory, or would a trial judge take the case away from the jury.  For the Court to come to a view on these issues necessarily requires the Court to resolve any admissibility problems of the kind raised in the present case.

Intention in common

32                  Further, the applicant contended that even if the photographic identification evidence were admitted, the evidence did not establish a prima facie case against her, because there was no evidence that she had an intention in common with Munnings or Hutson to import the drugs, as is required by s 66(2) of the Crimes Act 1961 (NZ).  Whilst the evidence may establish a prima facie case that the applicant purchased the airline tickets, there was no link between her purchase of the tickets and the importation of the drugs. 

consideration

33                  It is convenient to begin this section by further considering Kenneally.  I do not accept that it sanctions a court determining contentious questions of admissibility of evidence in proceedings under s 34(1)(c) of the Act.  It will be recalled that in Kenneally the Full Court agreed with the primary judge that it would have been inappropriate for a court conducting a review to determine disputed issues of fact.  The same reasoning applies to disputed questions of admissibility of evidence.

34                  The paragraph from Kenneally on which the applicant relies and which is extracted at [30] of these reasons does not contradict that position.  That paragraph follows the Court’s conclusion that there was no evidence at all against the appellant.  The Court explained that where there is no evidence against an appellant, then for that reason, there is no prima facie case against the appellant.  Not only, said the Court, was there no prima facie evidence against the appellant, but the case would not be permitted to go to a jury, and any verdict would be set aside on appeal as unsatisfactory or unsafe.  The references to Doney and Morris were a fortiori arguments in relation to a no evidence case.  The critical factor is that the discussion concerned a case in which the Court had already found that there was no evidence against the appellant.  There is no warrant for reading this passage as authorising a court to determine disputed questions of fact or law in the course of determining whether it would be unjust to surrender a person under s 34(2).  Such a conclusion would fly in the face of the express terms of the judgment. 

35                  Ms Gordon SC, who with Ms Orr appeared as counsel for the first respondent, submitted that the closest guidance for the present case was to be found in Bates v McDonald (1985) 2 NSWLR 89 (Bates).  This was an appeal to the NSW Court of Appeal from a judgment of Slattery CJ at CL reviewing a decision of a magistrate to surrender the appellant to New Zealand to answer drugs charges.  The question was whether the appellant had demonstrated that it was not in the interests of justice to surrender him to New Zealand under s 27 of the Extradition (Commonwealth Countries) Act 1966 (Cth), which was the forerunner of s 34 of the Act.  The appellant sought to tender depositions from committal proceedings in New Zealand, and from the trial in New Zealand of the appellant and his two co-accused (which had taken place in the appellant’s absence).  The respondent objected to the reception of that evidence.  The Court of Appeal however examined the depositions.  Kirby P said at 95:

But the scope and purpose of its examination is very limited indeed.  It is determined by the language and object of s 27 of the Act.  Relevantly, it is to decide whether the accusation against the appellant is ‘wholly misconceived’ or ‘cannot possibly be right’ or whether it is ‘demonstrably clear that the proceedings could’ have no foundation at all:  see Hope JA in Willoughby v Eland ([(1985) 59 ALR 147] at 152).  However, it is erroneous to suggest that the depositions and other evidence may be examined by the court with a view to evaluating disputed issues of fact or to determining doubtful questions of law …

36                  His Honour concluded at 96:

I see nothing in the depositions or in the other evidence before the Court to establish that the accusation against the appellant has not been made in good faith or in the interests of justice.  By so saying I am not to be taken as indicating that I have formed a view about the guilt of the appellant.  The evidence against the appellant on the remaining charge in the indictment concerning him would not appear to be strong at all.  However, whether there is sufficient evidence to go to the jury and whether the appellant will be convicted on such evidence are matters to be determined by due process of the law in the New Zealand courts and not by me.

37                  Samuels JA said at 100:

… in my view, it is not open to establish that an accusation has not been made in the interests of justice by showing only that its proof involves a doubtful or debatable question of law or fact which the magistrate ought to decide in the offender’s favour.  Rather it is necessary that the offender should establish that it is demonstrably clear that the accusation was totally misconceived or wholly lacking in any foundation.

38                  Finally, McHugh JA said at 102:

In my opinion when a person against whom a warrant has been issued under the Extradition (Commonwealth Countries) Act 1966 (Cth), s 24, can show that not only is there no evidence to support the charge against him but that the charge is not even open to argument, he establishes that it would not be in the interest of justice to return him to New Zealand.

In this respect the test is similar to that applying in civil cases where a party seeks to strike out a claim on a ground that it is an abuse of the process of the court:  see, for example, General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.  This test places a heavy burden on a person seeking to rely on s 27.

In cases where no evidence has yet been given against him, or where the whole of the evidence against him has not been tendered, his task of establishing that the accusation was not brought in the interests of justice will be almost impossible.

39                  Just as the Court in Bates looked at the depositions for a limited purpose, this Court should consider the admissibility of the photographic identification evidence, albeit for a limited purpose.  That purpose is to determine whether the trial judge could hold that the photograph identification evidence is admissible.  The photographic identification is prima facie admissible, but the trial judge has a discretion to exclude it if the prejudice to the applicant outweighs its probative value.  Unless this Court concludes that the trial judge would be bound to exercise the discretion to exclude the evidence, the appropriate inquiry at this stage is to assess whether there is a prima facie case against the applicant, including by reference to that evidence.  In other words, if the legal basis for admissibility is arguable, the evidence is to be taken into account to determine whether there is a prima facie case against the applicant. 

40                  This approach applies to a contested issue of law the same approach as has been applied to cases of contested issues of fact.  In Kenneally, the Court said that the evidence is to be ‘taken at its highest for the prosecution’ in order to test whether a prima facie case has been made out.  In Thorp v Abbotto (1992) 34 FCR 366 at 372, the same approach was illustrated by Lockhart J:

… a magistrate conducting a committal, having heard the evidence for the prosecution and for the defence, and having formed the opinion that there are two hypotheses open on the material before him, one consistent with guilt and the other with innocence, is not necessarily bound to discharge the defendant.

(See also Coco v Shaw [1994] 1 Qd R 469, especially at 499–500 per Dowsett J.)  Further, this view is consistent with a purpose of the Act, namely, that the prosecution of the accused should be determined where it was instituted:  O’Donnell v Heslop [1910] VLR 162 at 170 per Madden CJ, cited in Kenneally at [51].

41                  Applying this approach, in my view, a judge conducting a trial of the applicant in New Zealand would not be bound to exercise the discretion to exclude the photographic identification evidence of Dixon, Bunter and Sutton in favour of the applicant if the judge were required to apply a principle such as that enunciated for Australian law in Alexander.  Whilst some of the criticisms made by the applicant of the construction and use of the photoboard have some substance, they are not such as to compel the conclusion that the evidence would necessarily be excluded by the trial judge. 

42                  For instance, as to the construction of the photoboard, it would be open to a judge to conclude that the visual impact of the photoboard does not draw attention solely to the applicant in the same fashion as the construction of the photoboard drew attention to the accused persons in Blick or Knight.

43                  Further, the identification evidence does not come from one witness alone.  Although the evidence of identification from Bunter and Sutton was not evidence of positive identification, it does have some probative value: Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at [10] and [13].  When taken together with the positive identification evidence of Dixon, the risk of unreliability arising from identification from a single source is reduced.

44                  In relation to the use of the photoboard, it was contended that there was no evidence of the instructions given to the witnesses, and there was no evidence from the observing officers of their reaction to the images on the photoboard.  However, the absence of such evidence does not give rise to a necessary inference that the investigating officers used an unfair procedure.

45                  The fact that the photoboard was shown to the witnesses by the investigating officers rather then independent officers of rank, even if an undesirable practice, does not compel the conclusion that the process was unfair to the applicant. 

46                  The fact that the applicant was not present when the photoboard was shown to the witnesses is a common feature of the use of photoboards, and has led to the view that identification parades are regarded as preferable means of identification.  But again, the absence of the applicant does not give rise to a necessary inference that the process was unfair.  If that were so, no case would have permitted the use of photographic identification evidence in the absence of the applicant.  On the contrary, Alexander is an example in which such evidence was admitted in such circumstances.

47                  The use by all three witnesses of the formula ‘similar looking females’ to describe the images on the photoboard does not render their identification evidence so obviously unreliable that the trial judge would be bound to exclude the whole of their statements.  The description may be regarded as having little negative impact on their evidence because the description relates to the photoboard, which is produced as part of the witness statement.  The reader is given the chance to see what the witness was describing.  The use of identical terminology by all three witnesses may prove a fertile field for cross-examination by the applicant regarding the process used by the investigating officers.  But that is a matter for trial, not for the present task of assessing whether the evidence makes a prima facie case against the applicant.

48                  Further, the evidence that the applicant was in Auckland at the time when the hotel reservations were made, and that the telephone calls were made from locations with which the woman purchasing the airline tickets would have been familiar, could be used by a judge considering the admissibility of the photographic identification evidence as supportive of a view that the evidence is sufficiently reliable and that its use against the applicant would not be unfair.

49                  Finally, I do not accept the applicant’s submission that even if there is a prima facie case that she purchased the airline tickets, there is no evidence of a common intention shared by her to import the drugs. Once it is established that she purchased the tickets, and that the tickets were used by the named passengers for the purpose of importing the drugs, it is open to a jury to draw an inference that she was party to the overall criminal enterprise.

conclusion

50                  It follows from these reasons that the applicant has not established that it would be unjust to surrender her to New Zealand within the meaning of s 34(2).  Consequently the application must fail.  Pursuant to s 35(2) of the Act, the orders made by the Deputy Chief Magistrate on 21 February 2005 will be confirmed.

51                  As the application has been unsuccessful, in the ordinary course of events the applicant would have to bear the respondent’s costs.  An order in those terms will be made.  However, as the question of costs was not argued before me, the applicant will have liberty to apply to the Court seeking a variation of the costs order.  If she intends to do so, she must file and serve a notice of motion for that purpose no later than 10 August 2005.

Associate:

Dated:              5 August 2005