REASONS FOR JUDGMENT

Introduction

1                     This is an application by New Zealand under s 35 of the Extradition Act 1988 (Cth) ("the Act") to review the decision of Magistrate Mark Buscombe, the second respondent, of 18 December 2009.  New Zealand had sought the extradition of the first respondent to stand trial on a number of serious charges involving the alleged sexual assault of his stepdaughter over three decades ago.  The Magistrate determined under s 34(2) of the Act that the first respondent was to be released from custody and was not to be surrendered to New Zealand. 

2                     The first respondent is a 69 year old Australian citizen, born in Sydney.  On 22 June 2009 a warrant was issued by Judge Wade of the Manuakau District Court in New Zealand in relation to eight serious offences alleged to have occurred between 3 August 1973 and 11 June 1977 in Auckland, New Zealand.  On 16 September 2009, the first respondent was arrested under a New Zealand warrant indorsed under s 28 of the Act and was remanded in custody.  An application for bail, made on 17 and 18 September 2009, was refused at Hornsby Local Court.  The extradition proceedings were heard by the Magistrate between 23 November 2009 and 15 December 2009. The application for review was filed in this Court on 4 January 2010.  Regrettably it took several months for the parties to marshal further evidence for the review hearing which occurred in early August 2010.

The legislation

3                     Before considering the Magistrate's decision and the evidence and submissions in the review, it is convenient to refer to the relevant legislation. However, I do not propose to analyse, in an historical and statutory context, the extradition provisions of the Act as they apply to New Zealand.  That has been done by others: see, most recently, New Zealand v Moloney (2006) 154 FCR 250.  It is sufficient to note one aspect of the principal objects of the Act and one particular provision concerning extradition to New Zealand. 

4                     Section 3 of the Act identifies a principal object as being to codify the law relating to the extradition of persons from Australia where the court can determine whether a person is to be or is eligible to be extradited without determining the guilt or innocence of the person of an offence: s 3(a).

5                       Section 34 provides a mechanism for a person otherwise liable for extradition to New Zealand to resist extradition.  It provides that once a person has been arrested under an indorsed New Zealand warrant and a request is made to a magistrate for extradition, the magistrate must, by warrant, order that the person be surrendered to New Zealand, unless subsection 34(2) is satisfied.  If the magistrate finds that the offence is of a trivial nature, the allegation of the offence was "not made in good faith or in the interests of justice", a lengthy period has elapsed since the offence was committed or "for any other reason, it would be unjust, oppressive or too severe a punishment" to surrender the person, the magistrate must release the person.  The section provides:

(1)    Where:

(a)                either:

(i)                  a person has been remanded after being arrested under an indorsed New Zealand warrant; or

(ii)                a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person; and

(b)                a request is made to a magistrate by or on behalf of the person or New Zealand for proceedings to be conducted under this section;

the magistrate shall, unless the magistrate makes an order under subsection (2):

(c)                by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand; and

(d)                by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison.

(2)    If the magistrate 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.

(3)    The magistrate shall, after making an order in relation to the person under paragraph (1)(c), inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 35.

(4)    In the proceedings under this section, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued.

In this matter both before the Magistrate and in this Court the first respondent has sought to invoke paragraphs (b) and (c) of s 34(2) and also identify other reasons why it would be unjust, oppressive or both to surrender him to New Zealand.  Subsection (4) reinforces what is apparent from the object discussed earlier, namely that generally the magistrate or this Court on review is not concerned with the guilt or innocence of the person whose extradition is sought.  This is important notwithstanding that there are some authorities that suggest a court may consider the likely outcome of the proceedings if they are attended by some fundamental flaw.

The facts and allegations in outline

6                     In this section of these reasons, I provide a brief sketch of some essential facts concerning the first respondent and the complainant and the allegations she has made.  Elsewhere in these reasons I will refer to matters of detail when they are relevant and, in particular, relevant to my consideration of the submissions of the parties.

7                     The first respondent was born in Sydney in 1941.  In 1973 he met G the mother of the complainant. The complainant was born in 1963.  She initially lived in New Zealand with her biological father, C, his then partner and her biological brother, D(m), and did so until C died in 1972.  D(m) is two years older than the complainant.  In 1973 the first respondent began cohabiting with G in New Zealand.  At that time the household was made up of G and the complainant's two-step sisters, N and D(f) who are approximately 6 and 8 years younger than the complainant.  The complainant moved into the house with her mother and the first respondent in August 1973.  D(m) moved in as well.

8                     The complainant alleges that the first night she moved into the house she was sexually assaulted and ultimately raped by the first respondent.  She alleges the sexual assaults including rape continued until June 1977. The complainant alleges one incident involved the first respondent having sexual intercourse with her against the stove.  D(f) has provided the New Zealand police with a statement that she saw an event which broadly corresponds with this incident as alleged by the complainant.  In 1977 the complainant was placed under the guardianship of the Director-General of Social Warfare and thereafter spent time in a girl's home, foster care and a hostel run by a religious order.

9                     The first respondent and the complainant's mother moved to Australia in about 1980 with N and D(f).  The complainant and the first respondent met again at the funeral of the complainant's mother who died in 2004.  In August 2004 the first respondent was charged by police in New South Wales with indecent assault of a child of D(f).  He was tried and acquitted in November 2007.  D(f) gave evidence at the trial during which she gave false evidence.

10                  D(m) has provided the New Zealand police with a statement saying, amongst other things, that the complainant told him shortly after they moved in with the first respondent and their mother "[the offender] put his thing in me" and that sometime after staying with his mother and the first respondent in 1990 he asked the first respondent if he had molested his sisters to which the first respondent said yes.

11                  The first respondent was employed with the same employer between 1992 and his arrest on 16 September 2009.  Between 1996 and his arrest in September 2009, the first respondent lived in a Housing Commission unit on the Central Coast.  In April or May 2009, the first respondent met his present wife whom he married in August 2009.  She is a Chinese national and remains in Australia under a bridging visa though an application for a visa which would enable her to remain in Australia is presently under consideration by the Department of Immigration and Citizenship.  The first respondent has a sister who, with her husband, has assisted and supported the first respondent and his present wife.  She temporarily accommodated the wife when she was required to leave the Housing Commission unit after the first respondent's arrest.  The first respondent has been offered flexible part-time employment by his sister and her husband in a plumbing business he runs.

12                  The first respondent is presently unemployed and receives         a pension paid by Centrelink.  His assets are meagre.  The first respondent suffers from a number of medical conditions.

Decision of the Magistrate – 18 December 2009

13                  In overview, his Honour balanced the seriousness of the charges with the present circumstances of the first respondent in the context of the time which had elapsed between when the alleged offences took place and when extradition was sought.  Towards the beginning of his reasons, his Honour summarised the alleged offences describing them as being of the most serious kind and he noted that they included four counts of rape, one count of indecent assault, one count of assault, one count of permit a girl under 12 years do an indecent act being fellatio, one count of doing indecent act upon a girl under 12 years being a touching of the breasts and digital penetration. 

14                  When the Magistrate commenced to explain his conclusion, his Honour said he was very conscious of the serious and heinous nature of the allegations and the type of allegations that were made.  Nonetheless, his Honour decided when taking all factors into account to release the first respondent under s 34(2) of the Act.  His Honour observed in his concluding remarks that:

… in particular when regard is had to the delay in complaint, the delay in the investigation of the complainant's statement and the delay in the laying of the charges and the seeking of the extradition of Mr Johnston, his age and medical condition, the impact surrender will have on his ability to be employed, retain his longstanding accommodation, the impact upon his new wife which impacts upon him, that it would be oppressive to surrender him to New Zealand.

15                  For the purposes of these reasons, it is probably desirable to set out his Honour's reasons in a little more detail.  After commencing by recounting some of the background and the statutory provisions, his Honour identified the principal arguments advanced on behalf of the first respondent. The two principal arguments were:

(i)         The accusations made against the first respondent were not made in good faith and/or in the interests of justice.

(ii)        A lengthy period had elapsed since the offences were allegedly committed such that the first respondent suffered prejudices in preparing his defence with the consequence that extradition would be unjust, oppressive or too severe, particularly given his personal circumstances.

16                  His Honour then addressed the authorities dealing with s 34(2) which illuminated the applicable principles.  At the forefront of his Honour's discussion was the decision of Sackville J in New Zealand v Venkataya (1995) 57 FCR 151.  In that matter New Zealand had unsuccessfully sought the extradition of a person charged with serious sexual offences against two young girls who had been in his and his then wife's foster care.  The alleged offences had taken place in the order of two decades earlier.  His Honour noted aspects of Sackville J's reasoning including a discussion in Venkataya of the concepts of "unjust" and "oppressive".  In his reasons in this matter, his Honour said correctly:

There is an overlap between the concepts of "unjust" and "oppressive' although they are directed to two different concepts. Unjust is primarily concerned with the risk of prejudice to the accused in relation to the conduct of the proposed trial. Oppressive is concerned more with the hardship to an accused resulting from changes in his circumstances that have occurred prior to the proceedings for extradition…

17                  His Honour went on to consider the application of the relevant principles to the facts in this case.  He noted the burden of establishing the matters referred to in s 34(2) is on the person whose extradition is sought and if the court is satisfied that for one of the reasons set out in this subsection the extradition is unjust or oppressive, the court should order his release.  The seriousness of the allegations of rape and sexual assault on a girl under 12 years of age, the stepdaughter of the first respondent, was a factor that his Honour considered weighed heavily on his approach to whether the requirements of s 34(2) were made out.  The contention by the first respondent that the "wrong charge" was contained in the New Zealand warrant was rejected by his Honour.  The submission that Detective Stickland of the New Zealand Police (the officer in charge of the investigation at that time) had failed to properly assess the information given to the police by the complainant was also rejected by the Magistrate. His Honour indicated that there was no evidence to establish that the charges were brought other than in good faith and in the interests of justice.

18                  The delay and the possible prejudice caused to the first respondent were discussed in considerable detail by the Magistrate.  The chronology was as follows:

19                  The Magistrate was concerned that the first respondent appeared to have had no knowledge of the New Zealand investigation or charges prior to his arrest in September 2009 and he expressed regret at the complete halt to investigations by the New Zealand police for a considerable period (12 June 2006 to 10 December 2007) because of the first respondent's trial on unrelated charges in New South Wales.  The further six months delay from early 2008 to 8 August 2008 was also viewed by his Honour as of importance.  By the time the charges were laid on 22 June 2009, three years and three months had passed since the statement of the complainant had been received by the New Zealand police.  The Magistrate concluded that the "accused is clearly not responsible for the unfortunate delay".

20                  His Honour addressed the possible prejudices the first respondent might experience as a result of the delay.  Three of these were discussed in detail and were characterised by his Honour as forensic prejudices compromising or affecting the first respondent's capacity to defend the allegations.  The first specific prejudice dealt with was the lost opportunity of obtaining evidence from the complainant's mother who had died in 2004.  The complainant said that she regularly complained to her mother about the sexual conduct of the first respondent.  However his Honour indicated that was a matter of speculation whether the mother's evidence would assist the accused as distinct from the prosecution.  Another matter discussed by his Honour concerned the complainant's claim she had complained to neighbours.  His Honour recounted that the complainant had said that she told some neighbours Mr and Mrs Marmont or the Howards about the first respondent's conduct, and that one of them (Mr Marmont) died some time before 8 August 2008 and another (Mrs Marmont) was 78 years old and in a nursing home by the time police interviewed her.  This neighbour, by the time she was interviewed, was unable to remember the events between 1973 and 1977.  The Magistrate said that while he was not able to conclude Mrs Marmont would have been able to provide more useful information and whether her evidence would have been of assistance to the accused or the prosecution was a matter of speculation, his Honour nonetheless considered that the delay in conducting an interview with her highlighted "the unfortunate consequences of the unnecessary delay in the investigation of these very old allegations."  The third area of possible prejudice considered by his Honour was a submission that relevant evidence may have been lost.  The Magistrate indicated that this submission was speculative and the first respondent failed to establish positive forensic prejudice, but nonetheless his Honour indicated the delay and in particular the delay in the police investigation remained matters he was entitled to have regard to in considering whether or not the accused had satisfied him of the matters set out in s 34(2).

21                  The first respondent's personal circumstances were also viewed by his Honour as important.  He concluded the first respondent "would experience very considerable hardship if he were now surrendered to New Zealand to face charges arising out of events that are alleged to have occurred in New Zealand three decades ago."  His Honour also concluded his extradition would also "have a major impact upon his new wife" which would impact on him.  He noted the first respondent's marriage occurred nearly two years after he was acquitted of the charges in New South Wales and he was not then aware of the allegations made to the New Zealand police. 

22                  As to the first respondent's employment, his Honour noted that prior to his arrest on 16 September 2009 he had been employed for 17 years.  The first respondent lost his job because of his incarceration and the Magistrate concluded that "because of his age and certain health issues… [he] will have difficulty finding any other employment should he gain his liberty."  The first respondent also faced the possibility of losing his Housing Commission accommodation on the Central Coast where he has been living since September 1996 and his wife would not be able to live there without the first respondent, because of her immigration status.  A review of the medical evidence by the Magistrate revealed that the first respondent suffers from hypertension, hypercholesterolemia, gouty arthritis, external haemorrhoids, an anal fissure and osteoarthritis for which "his doctor [has prescribed] some nine medications that were required to be taken daily".  There was some evidence that the first respondent experienced some difficulty obtaining the medication in prison.

Status of the Magistrate's decision

23                  Section 35 of the Act provides that where a magistrate has made an order under s 34, application may be made within 15 days of the order to the Federal Court or to the Supreme Court of the State or Territory.  The Court may confirm or quash the order of the magistrate.  Section 35(6)(d) provides:

[I]n the case of an application for review - the court to which the application is made shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate;

24                  In Heslehurst v Government of New Zealand [2000] FCA 1311 Branson J noted (at [26]-[28]) that the terms of this subsection suggest that the rehearing is at the date of the review of the magistrate's order and that the Court is "required to determine for itself the rights of the parties as disclosed by the evidence before it having regard to the law as at the date of the review" (Kenneally v New Zealand  (1999) 166 ALR 625 and Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621).  The Court is to determine the appropriate order regardless of whether any error has been demonstrated by the magistrate.  The Court's discretion under this section "suggests against the review hearing being a hearing de novo in the strict sense" and will not be a "complete re-running of the proceeding under s 34 before this Court as though the hearing before the magistrate had not taken place."  The Court must "identify the grounds upon which the applicant says that the order of the magistrate should be quashed and, in the absence of special circumstances", limit the review to those grounds.  Her Honour expressed the view that the evidence before the magistrate would be placed before the Court and, in the proper exercise of its discretion, the Court is free to receive evidence in addition to or in substitution for the evidence that was before the magistrate. 

The parties submissions in outline

25                  In the affidavit of Rachael Anderson affirmed 4 January 2010 filed in support of the application the grounds of review at [8] were:

A review of the decision of the Second Respondent is sought on the basis that His Honour erred in finding that the delay and personal circumstances of the First respondent were such that it would be oppressive to extradite the First Respondent to New Zealand.

26                  The applicant submitted that the first respondent should be extradited because of the serious charges laid, the absence of "demonstrated actual prejudice", because delays of thirty years are not uncommon in such matters and the impact of such a decision on the first respondent and his wife would be comparatively minor in terms of employment and housing.  As to the first respondent's employment, the applicant noted that the first respondent was employed and his position held open for some of the time he was in custody.  This employment was terminated and he is now unemployed but entitled to an Australian aged pension.  The applicant contended that there was no compelling evidence that the first respondent's wife's immigration status would be jeopardised while the first respondent was in New Zealand and the possibility exists that the Housing Commission unit would remain available to her. 

27                  The first respondent conceded that the applicant did not have to demonstrate error in the decision of the Magistrate, however submitted that the reasons of the Magistrate should be carefully considered citing Heslehurst.  The first respondent supported and effectively adopted the reasons of the Magistrate and contended that the accusations were not brought in good faith.  Because the applicant did not inform the first respondent of the charges before 16 September 2009, the first respondent contended that there has been an abuse of process and grossly unfair treatment of the first respondent.  The first respondent rejected the contention of the applicant that there is "no oppression". Additional evidence on which the first respondent relied included the following:

(i)     Various medical reports including reports from the first respondent's general practitioner and reports from treating specialists.

(ii)    Affidavit of the first respondent's wife.

(iii)   A letter regarding the potential employment of the first respondent.

(iv)   The undertaking from New Zealand regarding his bail.

(v)       Bank statements and taxation return of the first respondent.

(vi)   Extracts from the complainant's New Zealand social welfare file. I should emphasise these documents had not been in evidence before the Magistrate and were admitted in this review subject only to an objection about weight and relevance and an observation that they could not be relied on to demonstrate guilt or innocence.

Some authorities

28                  Before considering the issues raised in these proceedings, it would be helpful to refer to some of the authorities.  As noted earlier, at the forefront of the decision of the Magistrate (and the submissions of the first respondent to his Honour and in this Court) was the judgment of Sackville J in Venkataya. The first respondent's reliance on this authority is understandable given that the circumstances are broadly similar to the present and his Honour upheld the objection to extradition.  In that matter it was alleged that the respondent had, between 1973 and 1974, committed sexual offences involving his foster child, at that time aged under 12 years of age while she was living in the respondent's home in New Zealand.  The respondent had not had prior notice that he was to be charged with offences allegedly occurring between 16 and 22 years before his arrest and had by then lived an "exemplary life" in Australia for many years.  His Honour considered (at 165–166) that the authorities supported a number of propositions in relation to the construction of s 34(2) of the Act:

(i)  On an application for the surrender of a person to New Zealand, it is not necessary, at least in the first instance, for the applicant to adduce evidence of the guilt of the person apprehended: Narain v DPP, at 419. However, if the person apprehended can show that there is no evidence to support the charge, or that there are other reasons why the prosecution cannot succeed, the court is likely to conclude that the accusation was not made in the interests of justice, within the meaning of s 34(2)(b) and that the surrender of the person would be unjust or oppressive: Bates v McDonald, at 102; Lewis v Wilson; Binge v Bennett, at 585; Butler v Morahan (1988) 94 FLR 372.

(ii) The words "unjust" and "oppressive", as used in s 34(2) of the 1988 Act, are directed at two concepts that address rather different issues, although they overlap to some extent. As stated by Olsson J in Perry v Lean, at 537:

The former primarily (but not exclusively) concerns itself with the risk of prejudice to the accused in relation to the conduct of a proposed trial. The latter is more related to hardship to an accused resulting from changes in his or her circumstances that have occurred during the period to be taken into consideration. However there is room for overlapping and between them the two concepts cover all cases where to return the accused would, in the whole of the circumstances, simply not be fair.

Although a dissenting judgment, his Honour's observations were not at odds with the legal principles adopted by the majority: see Edmonds v Andrews (1987) 85 FLR 419 at 421. See also Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, at 782-783.

(iii) The determination as to whether an order for surrender would be unjust or oppressive is a question of fact: Perry v Lean, at 537-538, applying R. v Governor of Pentonville Prison; ex parte Narang [1978] AC 247, at 272-273, per Viscount Dilhorne; Clear v Holyoak [1993] 1 Qd R 376, at 378 (determination of fact, or at least of mixed law and fact).

(iv) In determining whether it would be "oppressive" to surrender the apprehended person to New Zealand, the court can take into account the financial hardship, domestic upheaval and emotional distress the person would experience if surrendered: Hicks v Martin (1990) 27 FCR 416 at 418, per Morling, French and Lee JJ (for subsequent proceedings see Ex parte Hicks (1991) 65 ALJR 398. The apprehended person is entitled to rely on hardship, even though the hardship is not necessarily occasioned by the delay in bringing him or her to trial: Hicks v Martin, at 419, not following Bryan v Preston (1982) 64 FLR 46, at 53, on this point.

(v) The question under s 34(2) is not whether it was unjust or oppressive for the authorities to charge the accused, but whether, on the particular facts of the case, it would be unjust to remove him or her to that jurisdiction: Perry v Lean, at 519, per Jacobs J. Each set of circumstances must be assessed to determine whether injustice or oppression is present: Perry v Lean at 537 per Olsson J.

(vi) In determining whether there is injustice or oppression to an accused, the gravity of the offence charged is a relevant (and, I would add, very important) consideration: Perry v Lean, at 537; White v Cassidy (1979) 40 FLR 249. The "offence" in this sense refers to the facts and circumstances of the alleged conduct, rather than the theoretical nature of the offence: Edmonds v Andrews at 421.

(vii) The extent of any delay in instituting a prosecution, the cause of the delay and the consequences flowing from it are relevant and perhaps decisive: Perry v Lean at 537. However, if the delay is not due to the conduct of the alleged offender, the consequences of the delay are more significant than its cause: Edmonds v Andrews at 421-422. Mere delay without evidence that it has caused injustice or oppression, is not enough: White v Cassidy at 253.

In deciding that, despite the gravity of the charges, it would be both unjust and oppressive for the respondent to be surrendered to New Zealand, Sackville J took into account the whole circumstances of the case including the difficulties the respondent would face in preparing for trial due to the "extraordinary length of time" that had elapsed before the proceedings were instituted, the destruction of important evidence and the personal circumstances of the respondent.

29                  In Heslehurst referred to earlier, Branson J rejected the submission that it would be unjust, oppressive or too severe a punishment to extradite the applicant on charges of fraud.  The main issue was whether the applicant was fit to travel New Zealand because of his "seriously poor health".  While her Honour conceded that there could be occasions when his health would render him unfit to travel, no evidence submitted satisfied the Court that the applicant would ordinarily be unfit to endure a three hour flight.  The applicant also failed in his submission that the warrant was not a "New Zealand warrant" within the meaning of the Act.  This decision was upheld on appeal to the Full Court.

30                  The application of s 34(2) was also considered by the Full Court of this Court in New Zealand v Moloney.  The case concerned allegations of sexual abuse of schoolboys between 1971 and 1980 by two members of a religious order.  There were 15 complainants.  The Magistrate had decided that the brothers should be extradited because the gravity of the allegation outweighed the combined factors favouring their release.  This decision was quashed at first instance in a review conducted by Madgwick J: [2006] FCA 438.  His Honour concluded that despite the seriousness of the allegations, there would very likely be a high degree of unfairness in the allegations not being brought until 22 and 31 years after the alleged offences are said to have occurred.  His Honour was also concerned about the absence of a guarantee in any trial in New Zealand of a strong warning by the judge to the jury as to the very real problem in meeting such old allegations because the New Zealand courts have not followed the decision of the High Court in Longman v R (1989) 168 CLR 79.  As to factors personal to the alleged perpetrators of the crimes which might constitute oppression, Madgwick J observed (at [134]) they would "pale into insignificance, in my view, against the strong legitimate public interest in both Australia and New Zealand in having the charges dealt with in New Zealand".

31                  The Full Court allowed the appeal and held that the differences between Australian and New Zealand law did not warrant the conclusion that it would be unjust to extradite the respondent despite the long delay.  The Full Court observed (at [234]) that having considered all the factors taken into account by the primary judge, and notwithstanding the long period that had elapsed since the offences were allegedly committed, it had not been established before the primary judge that it would be unjust to surrender the respondents to New Zealand.  These observations can, I think, be taken to be an adoption of the primary judge's conclusion in relation to the issue of oppression as well.

32                  The problem of delay, which looms large in this matter, has been discussed in a number of cases.  Some have been referred to already.  The House of Lords in Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634 considered a relatively short period of delay (5 April 1973 to 16 December 1977) and refused to extradite the appellant to stand trial for murder in Cyprus.  Lord Diplock at page 639 stated in relation to delay not brought about by the acts of the accused:

What matters is not so much the cause of such delay as its effect; or, rather the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude.

Lord Russell of Killowen at page 641 added:

It is not merely a question whether the length of the time passed would make it unjust or oppressive to return the fugitive.  Regard must be had to all the circumstances.  Those circumstances are not restricted to circumstances from which the passage of time resulted.  They include circumstances taking place during the passage of time which may (as I think here) give to the particular passage of time a quality or significance leading to a conclusion that return would be unjust or oppressive.

The circumstances taking place during the passage of time included in this case that the appellant had since September 1974 led a settled life in England with his family and the witness on whom he relied for an alibi was no longer available.

33                  In Venkataya Sackville J made similar observations about the cause of the delay (in proposition (vii) set out at [28] above) and cited the judgment of von Doussa J in Edmonds v Andrews (1987) 85 FLR 419.  In relation to cases involving sexual abuse of children, Sackville J observed (at 167):

As I have previously indicated, it was not until October 1992, about 20 years after the events referred to in the indorsed warrant and 14 years after the last of the alleged offences, that the complaints were made. 

The point of this is not to deny that victims of sexual abuse often find it extremely difficult, or perhaps impossible, to complain about the offences to which they have been subjected, even after the passage of many years.  Particularly is this so where the victims are children; even more so when the abuse has continued over a lengthy period.  There is a very considerable literature dealing with the under-reporting of child sexual abuse cases and the difficulty of making accurate estimates of rates of abuse.  See, for example, J.M. Leventhal, "Epidemiology of Child Sexual Abuse" in R.K. Oates (ed), Understanding and Managing Child Sexual Abuse (1990), pp 18-41; H.R. Winefield and S.N. Castell-McGregor, "Child Sexual Abuse Cases: Facilitating Their Detection and Reporting By General Practitioners", (1987) 23 Aust. J. Soc. Issues 27.  (For a recent examination of the effect of the effect of mandatory reporting requirements on levels of reporting, see the Community Law Reform Committee of the Australian Capital Territory, Mandatory Reporting of Child Abuse (Report No.7, 1993).)  The important point for the purposes of this case is that nothing the first respondent did after about 1977 or early 1978 could be regarded as contributing to the delay of at least 16 years in instituting a prosecution against him.

34                  In Bannister v New Zealand (1999) 86 FCR 417, extradition proceedings concerning charges involving sexual abuse, the Full Court (at [35]-[36]) observed:

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 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.

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.

Consideration

35                  It appeared not to be in issue in this review that it remains the position that the first respondent has to demonstrate that grounds exist for his release which engage s 34(2). My consideration of whether such grounds exist can be informed by the reasoning and conclusion of the Magistrate.  I should, at this point, make one observation about his Honour's reasoning.  The Magistrate appears to have been influenced and possibly significantly influenced by the additional delay in seeking the extradition of the first respondent occasioned by the New Zealand police's decision to effectively suspend the investigation while the first respondent stood trial in New South Wales.  The Magistrate's reasons suggest his Honour thought this delay was unnecessary and perhaps even disapproved of the police's decision.  His Honour described an aspect of it as being regrettable.

36                  In my opinion, the Magistrate probably placed too much weight on the reason for this further delay and that it may have been, in whole or in part, avoidable.  The authorities which address the cause of the delay referred to in Sackville J's proposition (vii) in Venkataya (set out at [28] above) suggest that unless the delay is caused by the person whose extradition is sought (in which case the fact of delay will be less telling presumably because any oppressive effect is of that person's own making), the cause of the delay is less important than its consequences.  To put it this way reflects the way s 34(2) is framed.  It invites consideration of whether "a lengthy period has elapsed".  That is, it invites consideration of the extent of the delay and not its cause.  The substance of what needs to be considered is the fact that the delay between the time of the alleged offences and the time extradition is sought is, at this point, over 30 years.

37                  Before returning to consider this question of delay, it is appropriate to consider a number of submissions of the first respondent seeking to impeach the extradition process.  They are, in a sense, threshold issues.  It may be recalled that the Magistrate rejected a submission that the extradition request, if I can so describe it, was not made in good faith or in the interests of justice.  I put it this way because it was common ground (supported by authorities) that the "accusation" referred to in s 34(2)(b) calls for consideration of the decision of the police, in this case, to lay charges against a person whose extradition will be required for the prosecution of those charges.

38                  The first respondent challenged the bona fides of Detective Stickland.  The officer was cross examined before the Magistrate but not in the review.  It was said on behalf of the first respondent that, in effect, the cross examination would have been more robust (and perhaps by implication, more effective) if the complainant's social welfare file (tendered in evidence in the review) had been available to the first respondent.  In cross-examination Detective Stickland was asked whether there were, in the file, statements from social workers expressing "a disbelief" in relation to the complainant.  Part of his answer was that "I don't know that there is necessarily anything written by the social worker to say that they disbelieve what was said". 

39                  It is undoubtedly the case that the file contains quite a number of entries in which the person creating the file note either expressed a personal view that the complainant exaggerated or did not always tell the truth or recorded someone else expressing that view including teaching personnel from the complainant's school.  However, in fairness to Detective Stickland, it should be noted that the next question was "In fairness to you you sound quite vague about it, that's presumably because you don't have the file?"  to which the detective agreed noting that as it was a large document he did not have with him.  In my opinion, there is no basis to assume that if Detective Stickland had had the file in his possession or had been shown the entries to which my attention was drawn, he would have adhered to this answer or even given it in the first place. 

40                  What is probably more important is the broader attack made by the first respondent having regard to the contents of the social welfare file and the entries which assert the complainant's propensity to exaggerate and lie.  Some entries referred to by the first respondent were said to demonstrate the complainant actually lied.  The broader attack was to the effect that these recorded characteristics of the complainant were so damning that the complaint she made of sexual assault should have been approached with such caution and reserve that the charges should not have been laid.  This demonstrated "the accusation" was not made in good faith or in the interests of justice: see Sackville J's proposition (i) in Venkataya (set out at [28] above).  On the first respondent's approach, this conclusion was said to be fortified by the fact that one potential Crown witness (one of the complainant's sisters) whose evidence was to be relied upon in the prosecution of the first respondent, had given false evidence in the unsuccessful prosecution of the first respondent in the New South Wales criminal proceedings.  It was also said to be fortified by a statement from another sister which involved a wholesale rejection of the complainant's account of her relationship with the first respondent and which challenged details of the specific complaints of sexual assault.

41                  The reason why I consider this argument should be rejected is that even though there are entries which assert the complainant's propensity to exaggerate and lie, there are other entries in the social welfare file which record that the complainant, as a girl, was complaining that her stepfather was engaging in inappropriate conduct involving sexual molestation.  That is, her complaint made to the police in early 2006 was not the first complaint she made and she had, in fact, been making complaints to the same effect in the 1970s. It is true that at least one entry which records the complainant's accusations against her stepfather were investigated by the police who, one can infer from the entry, concluded there were no grounds for prosecuting the first respondent.  Why and on what basis this conclusion was reached is not known.  What is more important, in my opinion, is that there were contemporaneous complaints concerning the first respondent's conduct though I do not use the word contemporaneous in an evaluative sense associated with the admissibility of evidence that the complaints were made.  Armed with this information from the file of contemporaneous complaints and the potentially corroborative evidence of one of her sisters and her brother, it cannot be said that the decision to charge the first respondent was not made in good faith or not made in the interests of justice notwithstanding the entries about the complainant's propensity to exaggerate and lie. 

42                    Another threshold submission on behalf of the first respondent was that the first complainant had been charged with the wrong offence. This has not been demonstrated. It was a submission based on the terms of a New Zealand statute of some antiquity. Only extracts of the statute are in evidence. It would, in point of principle, be wrong for me to express a view about the operation of the statute when only parts of it are in evidence and probably wrong to do so without some further explication of how the statute operated during its currency.

43                  I now turn to the question of delay.  Plainly "a lengthy period" has elapsed for the purposes of s 34(2)(c).  That is the starting point.  The critical question is whether having regard to that lengthy period, it would be unjust or oppressive or both to surrender the first respondent.  The first respondent approached this topic by identifying "actual prejudices" and "potential prejudices".  I am content to adopt the same expressions and approach. I first consider whether it would be unjust.

44                  The first actual prejudice was that as the complainant's mother had died in 2004, the first respondent had lost the opportunity to call her to give evidence.  In this context, the first respondent notes that the complainant said in her statement to police that she had complained to her mother after the very first offence was committed (on 3 August 1973 involving alleged indecency with a girl under twelve by kissing the complainant, touching her breasts and inserting his finger into her vagina, a similar charge based on the first respondent inserting his penis in the complainant's mouth and lastly raping the complainant).  The complainant also said her mother told her that she would give the first respondent "the benefit of the doubt".

45                  Three other actual prejudices arise from the same circumstances, namely the inability of the first respondent to call the complainant's mother.  One concerns the complainant's account that the sexual abuse was like clockwork, the first respondent was constantly having sexual intercourse with her, every time it happened she would tell her mother again that "he touched me" and the mother would say she would talk to him but she would give him the benefit of the doubt.  The second concerns the complainant's account that she complained to her grandmother (her mother's mother) who confronted the first respondent who assaulted the grandmother.  The third was the complainant's account that her mother "procured the complainant into prostitution".

46                  Two points can be made about these "actual prejudices".  The first is that what the mother would say were she alive and called by the first respondent to give evidence remains, as the Magistrate pointed out in his reasons, a matter of speculation.  It is true that in the social welfare file some entries indicate that the mother shared the view held by others that the complainant exaggerated and lied.  But it is also true, as noted earlier, that contemporaneous complaints had been made by the complainant about sexual interference by the first respondent.  It cannot be assumed, for the purposes of these proceedings, that the mother was unaware of these complaints.  It cannot be said, as the first respondent appeared to submit in written submissions to the Magistrate (relied on in this review) that the complainant's evidence (assuming it is given) that she complained to her mother would be successfully challenged if the mother had been able to give evidence.

47                  The next actual prejudice is said to arise because of the first respondent's inability to call teachers at the complainant's school and social welfare workers to give evidence about the complainant's propensity to exaggerate and lie.  Another actual prejudice flowed from the fact that Detective Strickland was only able to trace medical reports with local doctors back to 1982.

48                  What I understood to be the last actual prejudice concerned the inability of the first respondent to call the complainant's grandmother (her mother's mother).  In the social welfare reports is an entry recounting a conversation between a social worker and the grandmother in 1978.  It records that the grandmother said the complainant had a bad habit of telling lies to her neighbours about family life which often embarrassed her (the grandmother). The grandmother is also recorded as going on to say that she had discussed this with the complainant but she seemed unable to realise the importance of spreading family secrets.  The inability to call the grandmother is also advanced, as I understood the submission, in relation to a matter mentioned earlier, namely the complainant's account that she complained to her grandmother who confronted the first respondent who assaulted the grandmother.

49                  Again the difficulty with these remaining "actual prejudices" is, with one important qualification I discuss shortly, that they involve speculation as to how any trial of the first respondent would have unfolded and what the evidence which is now unavailable (either documentary or from witnesses) would have been and, in particular, whether it was admissible and, if so, supportive of the first respondent's defence.

50                  I accept that it is not appropriate to approach the issues in this matter by applying principles or precepts deployed in determining applications to stay criminal proceedings because of delay.  Nonetheless observations in authorities dealing with such applications are apt to apply in a case such as the present.  One such authority is R v Adler (unreported, Court of Criminal Appeal of New South Wales, 11 June 1992) where Gleeson CJ observed (at 4):

The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial…

51                  Another is the recent judgment of the High Court of Australia in R v Edwards (2009) 83 ALJR 717 which concerned the loss of monitoring records and relevant evidence on an aircraft's flight data recorder. The incident, the object of the investigation, took place on 23 October 2001.  Delays in prosecuting the offences occurred between April 2002 and March 2004.  The proceedings were not listed for trial until 21 November 2006 and this listing was adjourned.  An application for a stay was listed for 26 November 2007 based on the loss of "primary technological evidence".  It was held at [33] that no feature of the delay justified taking "the extreme step of permanently staying proceedings on the indictment as it had not been established that any prejudice could not be addressed."  At [31] the Court said:

The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.

52                  A number of "potential prejudices" (in some limited ways repetitive of the "actual prejudices") which had been identified at the written submissions to the Magistrate were relied on in the review.  The first class of "potential prejudices" concerned the first respondent's inability to call a number of witnesses because they had died (one neighbour and an uncle of the complainant).  The second class of "potential prejudices" concerned other potential witnesses who, if they were alive, could be located (and if not that was a potential prejudice) and were available, would be witnesses from whom the first respondent would not be able to elicit meaningful evidence because of the passage of time (including other neighbours, an aunt of the complainant, the principal at the complainant's school and social workers).  Another class of "potential prejudices" concerned documents the first respondent would now be unable to obtain and tender as evidence which might support his defence (including doctor's records, taxi records (when, on the complainant's account, her grandmother was allegedly picked up by a taxi after the alleged assault by the first respondent), documents establishing he commenced work early and before the complainant's mother left the house, and finally hospital records (concerning a period when the complainant contended her mother was in hospital and in which she was sexually abused by the first respondent)). 

53                  The observations I earlier made about the "actual prejudices" apply equally to these "potential prejudices" and I do not repeat them.

54                  I referred at [49] to an important qualification.  It is this.  As noted earlier, in the extracts of the complainant's social welfare file there are a considerable number of entries which record that the author of the entry (on occasions the entry records the author as a social worker) believed the complainant lied or exaggerated or recorded that others (including teachers from the complainant's school) held a similar view.  Quite apart from whether people who held these views could have been called at a trial by the defence to give evidence had the trial taken place shortly after the alleged offences occurred (which I would very much doubt), the events and circumstances which were foundational to these opinions could, potentially, have been (and would still be) an important element, and possibly critically important, in the cross-examination of the complainant at a trial then and now, at any trial which occurred if the first respondent was now extradited.  That is, her credit could have been attacked and potentially significantly undermined by cross examination focused on the events and circumstances which led others to form the view that she had a propensity to lie or exaggerate.  As a practical matter, the first respondent or any lawyers he might retain now, some 30 years later, have no capacity to investigate these events and circumstances.

55                  The task of determining whether it would be unjust to surrender a person is not narrowly focused.  As Mohr J noted in Perry v Lean (1985) 39 SASR 515 at 530:

The concept of injustice or "unjust" is not confined to the appellant.  This concept needs to be considered in the wider concept of justice taken as an entire concept including the general interest of the community as a whole in having persons charged with serious crimes brought to trial.

It is at least implicit in the observations of Sackville J in Venkataya and the Full Court in Bannister quoted earlier that in cases involving the alleged sexual assault of children quite legitimate reasons can explain why a very considerable period may have elapsed between the time the alleged offences took place and the time the alleged perpetrator is charged and, in appropriate cases, exposed to extradition proceedings.  Probably also implicit in the observations is that having regard to those legitimate reasons a very long period of delay should not, in the ordinary course, frustrate the extradition and trial of an alleged perpetrator in circumstances where the complaint of sexual assault was first made to police many years after the alleged assaults occurred.  To allow such delay to operate to deny the trial of alleged child sexual offenders would offend against wider concepts of justice and the general interest in this and other communities in having such people brought to trial.  For my part, this is undoubtedly correct. It is comparatively obvious that this was also the view of the Full Court in New Zealand v Moloney.

56                  In the present case, Detective Stickland pointed to this issue in an affidavit supporting the extradition of the first respondent.  He deposed to the fact that in his experience in working with allegations of this nature, it is the norm for children not to disclose the abuse at the time of the offending.  Also the complainant explained in her statement to the New Zealand police that the reason why she reported the matter after so many years was because she had heard the allegation that the first respondent had sexually assaulted D(f)'s child, the first respondent's granddaughter, and that he needed to be stopped.  However the difficulty, in this case, is that the extracts from the complainant's social welfare file reveal that at some stage comparatively shortly after the alleged assaults took place, the complainant did complain about the assaults, they were investigated by the police but no prosecution eventuated.

57                  It seems to me that in these probably quite unusual circumstances the consideration of whether the extradition of the first respondent would be unjust has to be informed by the fact that the extremely long delay of over three decades before the present complaint was made and charges laid was not the product of a victim of sexual assault as a child being unable to ventilate a claim of criminal sexual abuse until many years had passed and the victim was sufficiently resilient to do so.  I do not, and indeed cannot, refer to the earlier police investigation as having some bearing on whether the first respondent committed the offences with which he is charged.  Addressing the issue is no part of the role of the Court in proceedings of this type.  However it is relevant, in my opinion, to how I evaluate the impact of an extraordinarily long delay on the capacity of the first respondent to defend the charges if he went to trial in New Zealand.

58                  For reasons which I explained earlier at [54], I consider that the first respondent would be actually prejudiced in his defence because of the delay and, in the result, it would be unjust for him to be surrendered.

59                  I now turn to consider whether it would be oppressive to surrender the first respondent. The main changes in his circumstances that have taken place since the alleged offences relate to his health, his marriage, residency, financial status and employment.

60                  The applicant tendered a report of Dr Craig Lilienthal, dated 5 July 2010, in which a number of medical reports and certificates issue by the first respondent's general practitioner Dr S Chaugule and various specialists were considered.  Dr Lilienthal was the doctor chosen by the applicant to prepare a medico-legal report.  The summary of the report was as follows:

Mr Brian Johnston suffers from multiple health problems (co-morbidities).  Taken individually and even collectively, none of Mr. Johnston's medical conditions would, in my opinion preclude him from international travel to New Zealand.

However, given his beliefs, I would have concern for his emotional well being if he were removed from his current domestic and therapeutic environments.

The final paragraph related to Dr Lilienthal's assessment of the first respondent's anxiety and depression.  It was stated at page 6 of the report, "However, I would have significant concerns for his mental health should the events about which he has concerns, actually eventuate." Earlier in the report at page 5, Dr Lilienthal found Mr Johnston to be depressed, although he did not perform any formal assessment of the severity of his depression.  The doctor stated:

I believe his depression relates to (a) his prior knowledge and experience of the prison system, past and recent; (b) the complexity of his current medical conditions; (c) the effects of a successful extradition order and criminal charges in another country – on himself and his wife's circumstances.

61                  Further evidence concerning the health of the first respondent was furnished by him, including a copy of a letter from Dr S B Chaugule of 3 April 2010.  This indicates that the first respondent is suffering from eight different ailments, including hypertension, hypercholesteremia, gouty arthritis in the knee joints and feet, osteo arthritis in the cervical spine, lumbar sacral spine and the shoulder, bilateral olecranon bursitis operated on about six months ago, an enlarged prostate and "severe external hemorrhoids".  There are 12 different medications listed.  Dr Chaugule also said "He is in a serous state of anxiety and depression", and the doctor reported that the first respondent has had to take some sedatives to enable him to sleep because he has been worried about his problems and his financial situation.  Additional correspondence furnished by the first respondent included letters from Dr Denis S Crimmins, Consultant Neurologist dated 19 March 2010 and 23 April 2010 which indicated he is being treated for sensory peripheral neuropathy.  A letter of 17 May 2010 from Dr Stephen E G Ruthven, Urologist reported that the first respondent is suffering from "outflow obstruction" for which he may need catheterisation and he will undergo examination at the public hospital when a bed is available.  Dr Ruthven indicated that the first respondent would be able to travel unless the symptoms became severe.

62                  On 29 August 2009 the first respondent married J, a Chinese national who had arrived in Australia on 12 April 2009 on a student guardian visa to accompany her daughter who is in Australia on a student visa.  The affidavit of J, dated 22 July 2010, indicates she was granted a Bridging Visa E on the expiration of her guardian visa and an 820 Partner Visa application was lodged on her behalf on 14 October 2009.  The first respondent is her proposed sponsor for the 820 Partner Visa.  Her application for permanent residence in Australia is still being processed. 

63                  J said that she did not know anything about the charges laid against the first respondent.  When the first respondent was arrested and detained she went to stay with the first respondent's sister because she had been informed that she would be unable to remain in their current home (the Housing Commission flat) as she does not have residency.

64                  In an affidavit, dated 26 July 2010, Fiona Lee McCullough, Director, Partner (Temporary) Migration of the Department of Immigration and Citizenship said for J to be eligible for a permanent residency, she would have to demonstrate that she is in a genuine relationship with an Australian citizen or permanent resident and she would have to satisfy a range of other criteria.  At [9] she said that regulation 1.20(2)(c) is specifically relevant in this case where the sponsor, the first respondent, must commit to assist the applicant "to the extent necessary" financially and with regard to accommodation for the period of two years immediately following the grant of the visa.  Ms McCullough said at [16] that any decision to extradite the sponsor to New Zealand would not be directly relevant because residence in Australia is not a criteria applied when assessing the sponsorship.  Ms McCullough said that the first respondent "has not provided sufficient information as yet however to determine his capacity to provide financial support to the applicant, either in Australia or outside Australia."  At the hearing, Ms McCullough explained that the visa that J currently holds, the Bridging Visa E, allows her to remain in Australia pending the outcome of her application but does not permit her to return if she chooses to leave the country.  A new application for entry would be required.  In cross examination by counsel for the applicant, Ms McCullough was not able to say definitively that J would be granted a visa permitting re-entry, assuming Mr Johnston was extradited to New Zealand and she chose to follow him. She suggested, however, that in the event J's application for permanent residency was assessed as likely to succeed , then her re-entry might be facilitated.

65                  As noted earlier, the first respondent and his wife have been residing in a Housing Commission unit.  The first respondent has lived there for about 13 years until his arrest.  It appears to be the case that if he is absent from his home for a period of more than three months the tenancy will either be terminated or transferred to another eligible person.  An email from Ms Frances Kirkland, A/Housing Manager, Housing NSW, dated 19 November 2009 is in evidence. Ms Kirkland referred to Policy: Absence from Dwelling – E8T0039A which states that if a client is going to prison they can apply to retain the tenancy for up to three months.  At the end of that time if the tenant has not been released from prison the tenancy should be transferred to another household member living in the tenancy or the tenancy is to be terminated.  Ms Kirkland indicated that J would not meet the eligibility critera for succession to the tenancy, particularly as she is currently on a bridging visa and is not entitled to Centrelink benefits or employment.  J would only be able to re-occupy the premises when the first respondent is released and is able to support her financially.  The first respondent also would not meet the acceptable reasons for being absent for up to six months.  He would only be able to apply and be assessed for housing priority tenancy reinstatement and, if approved, the first respondent would be rehoused within approximately 3-6 months.  Mr Kirkland was unable to predict how long it would take for the first respondent to be rehoused on the Central Coast because it is an area in high demand.

66                  The allegations against the first respondent of child sexual abuse are extremely serious.  They concern what the Magistrate rightly characterised as heinous allegations. But a lengthy period has elapsed since the offences were alleged to have been committed. Since then the first respondent's circumstances have changed and this needs to be considered in the context of the delay and in the context of whether extradition would be oppressive.  The first respondent has lived a settled and substantially crime-free life on the Central Coast for at least the past 13 years.  He is now nearly 70 years of age and is in poor health.  While it would be possible for him to travel to New Zealand, the evidence indicates that extradition would impact on his mental and emotional health.  The first respondent's prospects of employment are limited and it appears that he would lose possession of his Housing Commission unit.  If extradited, he would be separated from his wife or if she was to accompany him it would expose her to the risk of not being able to re-enter Australia with him if he was acquitted.

67                  However, in my opinion, I should adopt a fairly robust approach to the effect of extradition on a male of advancing years charged with child sexual assault, such as the first respondent. To do otherwise would defeat the prosecution of child sexual offenders which often arise in the circumstances described in [55] and [57] above.  As Madgwick J observed in New Zealand v Mahoney (as noted at [30]), hardships of the type identified by the first respondent would "pale into insignificance .... against the strong legitimate public interest in both Australia and New Zealand in having the charges dealt with in New Zealand".  I am not satisfied that would be oppressive to surrender the first respondent to New Zealand.

68                  In his concluding observations in Venkataya, Sackville J observed that "this is a difficult case".  This case is no less difficult.  I have concluded that the first respondent should not be surrendered to New Zealand as to do so would be unjust though not oppressive. The application for review should be dismissed.

Associate:

Dated:         2 September 2010