FEDERAL COURT OF AUSTRALIA

Nakane v New Zealand [2014] FCA 772

THE COURT ORDERS THAT:

1.    The order made by Magistrate Andrews on 7 March 2014 that Robert Nakane (also known as Robert Boyd) be surrendered to New Zealand is confirmed.

2.    The proceeding is otherwise dismissed.

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

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

REASONS FOR JUDGMENT

INTRODUCTION

1    Mr Robert Nakane, also known as Mr Robert Boyd, was the subject of orders made by a Magistrate of the State of New South Wales on 7 March 2014 under s 34(1) of the Extradition Act 1988 (Cth) (the Act) requiring that he be surrendered to New Zealand and a further order that, pending surrender, he be committed to prison. Mr Nakane has applied to this Court for a review of these orders pursuant to s 35 of the Act.

THE RELEVANT STATUTORY PROVISIONS

2    The principal objects of the Act are set out in s 3 and are as follows:

(a)    to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may 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;

(b)    to facilitate the making of requests for extradition by Australia to other countries; and

(c)    to enable Australia to carry out its obligations under extradition treaties.

Other relevant provisions are found in “Part III – Extradition from Australia to New Zealand” (ss 28-39).

3    Sections 28 and 29 of the Act provide:

28    Indorsement of New Zealand warrants

    Where:

    (a)    an application is made, in the statutory form, on behalf of New Zealand to a magistrate or eligible Federal Circuit Court Judge for the indorsement of a New Zealand warrant under this subsection; and

    (b)    the magistrate or Judge is informed by affidavit that the person for whose arrest the warrant is in force is, or is suspected of being, in or on his or her way to Australia;

    the magistrate or Judge shall make an indorsement on the warrant, in the statutory form, authorising the execution of the warrant in Australia by any police officer.

29    Provisional arrest warrants

    Where:

    (a)    an application is made, in the statutory form, on behalf of New Zealand to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant in relation to a person under this section;

    (b)    the magistrate or Judge is informed by affidavit that a New Zealand warrant has been issued in relation to the person;

    (c)    no application is before the magistrate or Judge under section 28 for the indorsement of such a warrant; and

    (d)    the magistrate or Judge considers that the issue of a warrant in relation to the person under this section is, having regard to any information that the magistrate or Judge considers relevant, justified in all the circumstances;

    the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.

4    Section 34 of the Act provides:

34    Surrender warrants

(1)    Where:

    (a)    either:

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

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

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

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

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

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

(2)    If the magistrate or Judge is satisfied by the person that, because:

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

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

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

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

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

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

5    Section 35 of the Act relevantly provides:

35    Review of magistrate’s or Judge’s order

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

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

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

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

(2)    The Federal Court may, by order:

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

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

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

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

…

(6)    Where the person or New Zealand:

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

    …

    the following provisions have effect:

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

…

6    Extradition of a person to New Zealand under the provisions of the Act is initiated either by an arrest pursuant to a warrant issued in New Zealand which has been indorsed for that purpose by an Australian magistrate (s 28) or pursuant to a provisional warrant issued by an Australian magistrate who is satisfied that an arrest warrant has been issued in New Zealand (s 29). The procedure after arrest is for the person charged with the New Zealand offence or offences to be brought forthwith before a magistrate and dealt with under s 33A or s 34.

7    The Full Court in New Zealand v Johnston (2011) 274 ALR 509 observed at [18] that the objects of the Act make clear that Australian courts that are called upon to determine extradition proceedings are not to determine the guilt or innocence of the accused. Their Honours observed at [18]:

The first of the three principal objects of the Act (viz that which is specified in s 3(a) of the Act) makes very clear that Australian courts which are called upon to determine extradition proceedings are not to determine the guilt or innocence of the accused, whether extradition is sought to New Zealand or to an extradition country (as defined in the Act). In the case of extradition to New Zealand, this fundamental directive is reinforced by the terms of s 34(2) and (4) of the Act. When considering an application for extradition to New Zealand, an Australian court must not conduct an inquiry similar to a committal hearing and must not embark upon any consideration or assessment of the guilt or innocence of the accused except in the rare case where the impossibility of conviction is plain beyond argument.

(citations omitted)

See also New Zealand v Moloney (2006) 154 FCR 250 (Moloney) at [28]-[35]. The onus rests upon the person whose extradition is sought to satisfy the magistrate of the matters set out in s 34(2): Moloney at [31].

8    This proceeding is a re-hearing: see s 35(6)(d) of the Act. The respondent submits that I should confirm the orders of 7 March 2014. Mr Nakane submits that I should quash them: see s 35(2).

EVIDENCE

9    New Zealand relied upon affidavit evidence of Antonia Karavias and Robert Jenner. Ms Karavias was not required for cross-examination. Mr Jenner’s affidavit (which was made in a related proceeding) was tendered (Ex A). He was called to give oral evidence and was cross-examined by Mr Nakane.

10    Ms Karavias is a solicitor employed by the Director of Public Prosecutions (DPP). Those parts of her affidavit which were read mostly serve to identify various documents that were annexed to her affidavit including copies of:

    an application under s 29 of the Act for a “Provisional Arrest Warrant” dated 13 June 2013 signed by Robert Jenner;

    a “Provisional Arrest Warrant” issued under s 29 of the Act signed by a Magistrate of the State of New South Wales (G. J. Grogin) and dated 13 June 2013 (the Provisional Arrest Warrant);

    a “Warrant to Arrest Defendant who is to be Proceeded against by Indictment” issued by District Court Judge A A Zohrab and dated at the Nelson District Court, 13 June 2013 (the NZ District Court Warrant);

    the NZ District Court Warrant with an “Endorsement of New Zealand warrant under s 28 of [the Act] authorising execution of warrant in Australia” dated 20 June 2013 signed by Magistrate Graeme Curran (the Endorsed NZ Warrant);

    the “Surrender Warrant” issued under s 34(1) of the Act signed by Magistrate John Andrews and dated 7 March 2014 (the Surrender Warrant); and

    the “Warrant of Committal” under s 34(1) of the Act also signed by Magistrate John Andrews and dated 7 March 2014 (the Committal Warrant).

Also in evidence is a copy of the Indictment in the matter of Regina v Robert Boyd in the District Court at Greymouth (the Indictment).

11    Mr Jenner is a Police Officer with the Australian Federal Police. He gave evidence based upon immigration records which indicate that Mr Nakane arrived in Australia on a New Zealand passport on 24 January 2013. He also produced a copy of the NZ District Court Warrant the original of which he said was received by the DPP on 19 June 2013. Mr Jenner’s evidence was that he applied for and obtained the Provisional Arrest Warrant issued by Magistrate Grogin (though the name is misspelt in Mr Jenner’s affidavit) on 13 June 2013, and that Mr Nakane was arrested by NSW Police on 13 June 2013.

12    New Zealand also relied upon certain parts of a copy of an affidavit made by Detective Alexandra Emma-Jane York in connection with a criminal matter in the District Court at Nelson in New Zealand. That affidavit was tendered and received into evidence in circumstances where Detective York, who is a detective in the New Zealand Police based at Nelson, was not available for cross-examination. Detective York is named as a witness for the prosecution in the Indictment. I admitted parts of Detective York’s affidavit over Mr Nakane’s objection pursuant to s 63 of the Evidence Act 1995 (Cth). It is not necessary for me to refer to Detective York’s affidavit because the other evidence adduced by the respondent is in my view itself sufficient to establish what the respondent is required to establish under s 34(1) of the Act (see [16]-[21] below).

13    Mr Nakane relied upon two affidavits made by him. He was not cross-examined. His affidavit evidence raises a number of matters. In particular he asserts:

    He believes that he will be prejudiced at his trial, and restricted in his personal liberty, by reason of his religion and political opinions.

    The accusations relating to the charges against him were not made in good faith or in the interests of justice. Those charges were “conspired” by an ex-partner who befriended his children.

    He believes that it would be unjust and too severe a punishment for him to be returned to New Zealand. He has lived in a gang environment since childhood. He turned his back on the gang life in New Zealand and is now seen as a major threat to the gang because of his inside knowledge of the gang. He would be killed if he were to return to New Zealand.

14    Other matters raised in his affidavit evidence (and also in his oral submissions) refer to the possibility that Mr Nakane will or may be the subject of psychological torture if he is extradited to New Zealand. He also relied upon copies of various documents which, as I understood his submissions, are said to suggest that his human rights will or may be violated if he is extradited to New Zealand.

15    Mr Nakane has not suggested in his evidence or his submissions that he is not the person referred to in the Indictment or the Endorsed NZ Warrant as Mr Robert Boyd, that he was not charged with the offences referred to in that document, or that he did not leave New Zealand for Australia under the name Robert Nakane shortly before he was due to stand trial.

GENERAL FINDINGS

16    Mr Nakane, who was then known as Robert Boyd, was charged in New Zealand on 6 August 2011 with a number of offences under the Crimes Act 1961 (NZ) (Crimes Act). These offences included one count of sexual violation by rape contrary to s 128(1)(a) and four counts of sexual conduct with a girl under 12 contrary to s 132(3). He was also charged on two other counts of assault, one under s 202C(A), and another under s 196. The offences with which Mr Nakane has been charged are alleged to have been committed by him at Rotomanu between January and August 2011.

17    Mr Nakane was due to stand trial on 28 January 2013. On 24 January 2013, while on conditional bail, he left New Zealand for Australia.

18    On 13 June 2013, New Zealand District Court Judge A A Zohrab issued the NZ District Court Warrant. On 13 June 2013, Mr Jenner made an application under s 29 of the Act for an arrest warrant. On the same day, the Provisional Arrest Warrant was issued for the arrest of “Robert Boyd” by Magistrate Grogin. On 14 June 2013, Mr Nakane appeared before Kempsey Local Court at which time he was remanded in custody. He has been in custody since that time.

19    On 19 June 2013, the Director of Public Prosecutions received the original NZ District Court Warrant. On 20 June 2013, Magistrate Curran endorsed the NZ District Court warrant pursuant to s 28 of the Act.

20    On 21 June 2013, Mr Nakane appeared before Magistrate Mabbutt at Central Local Court. Mr Nakane did not consent to his extradition under s 33A of the Act. A request was made to the Magistrate on behalf of New Zealand for proceedings to be conducted under s 34 of the Act.

21    On 7 March 2014, following a hearing under s 34 of the Act, Magistrate Andrews made an order pursuant to s 34(1)(c) of the Act issuing a surrender warrant and an order pursuant to s 34(1)(d) of the Act issuing a warrant for committal to custody pending extradition.

SECTION 34(2) FINDINGS

22    It is for Mr Nakane to satisfy me of any one or more of the matters referred to in s 34(2) of the Act.

23    Mr Nakane did not suggest that any of the offences with which he is charged in New Zealand (as endorsed on the NZ District Court Warrant) is of a trivial nature. I am not satisfied that any of the charges is of a trivial nature: see s 34(2)(a) of the Act. It is obvious that at least some are very serious. They include various charges relating to the alleged rape and indecent assault of a young child.

24    Mr Nakane did not adduce any evidence to show that the accusations made against him upon which the charges are based were not made in good faith or in the interests of justice. He did suggest in argument before me that his children (two of whom are alleged victims of the offences with which he is charged) were not telling the truth. Whether they are telling the truth or not is not for me to decide. On the material before me I am not satisfied that the accusations made against Mr Nakane were not made in good faith or in the interests of justice: see s 34(2)(b) of the Act.

25    Mr Nakane did not suggest that a lengthy period has elapsed since the alleged offences were committed. It is alleged that the offences were committed by him in 2011. I am not satisfied that the period of approximately three years that has elapsed is a lengthy period for the purposes of s 34(2)(c).

26    This brings me to the specific matters that were relied upon by Mr Nakane as to why it would be unjust, oppressive or too severe a punishment to surrender Mr Nakane to New Zealand. The evidence and submissions relied upon by Mr Nakane focused upon two matters. The first concerns what was said to be the threat posed to him arising out of his previous association with gangs in New Zealand. Mr Nakane says he is at risk of serious physical harm from gang members if he is required to return to New Zealand. The second matter concerns what Mr Nakane described as psychological torture which he says he will suffer if he is required to return to New Zealand.

27    These matters find no support in the evidence. Mr Nakane’s affidavit evidence does not rise above mere assertion without any elaboration which might help to explain whether he genuinely holds the fears he claims to hold, why he holds them, and whether any such fears, if genuinely held, have any reasonable foundation.

28    For reasons discussed in Moloney at [36]-[37], the scheme of the Act demonstrates Parliament’s confidence in the New Zealand justice system. There is an assumption underlying the statutory scheme that a person extradited to New Zealand to answer criminal charges will receive a fair trial.

29    In the circumstances, I am not satisfied that it would be unjust, oppressive, or too severe a punishment to surrender Mr Nakane to New Zealand.

THE PROVISIONAL ARREST WARRANT

30    Mr Nakane took the point that the Provisional Arrest Warrant issued by Magistrate Grogin on 13 June 2013 might not be valid because a space in the statutory form prescribed by the relevant regulations made pursuant to s 55 of the Act was not completed by the Magistrate. The prescribed form provides for the insertion of the name and designation of the Magistrate in the space: see Form 19 in the Schedule to the Extradition Regulations 1988 (Cth) (the Regulations).

31    It is apparent from the copy of the Provisional Arrest Warrant that is in evidence that Magistrate Grogin signed the original document in his own hand, and clearly identified himself on the face of the document as “G. J. Grogin Magistrate of the State of New South Wales”.

32    Section 25C of the Acts Interpretation Act 1901 (Cth) provides:

Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.

33    If the Provisional Arrest Warrant is not strictly in accordance with the requirements of the Act or the Regulations, it substantially complies with such requirements. It is therefore not necessary for me to consider what the legal consequences might be for the purposes of this proceeding had I come to the view that the Provisional Arrest Warrant did not substantially comply with the requirements of the Act or Regulations.

OTHER MATTERS

34    Mr Nakane suggested that he could not obtain a fair hearing of his application to quash Magistrate Andrews’ orders of 7 March 2014 in circumstances where he was not legally represented and because, in Mr Nakane’s words, he is “legally blind”.

35    As to the first of these matters, the “Dietrich” principle (see Dietrich v Queen (1992) 177 CLR 292) does not apply to this proceeding: Rivera v United States of America [2004] FCAFC 154 at [20]-[26]. So far as Mr Nakane’s “blindness” is concerned, it is apparent to me from my own observations of him in Court that any hardship or difficulty he may suffer as a consequence of poor eyesight was not such as to prejudice him in the conduct of this proceeding.

DISPOSITION

36    The order made by Magistrate Andrews on 7 March 2014 that Robert Nakane (also known as Robert Boyd) be surrendered to New Zealand will be confirmed. The proceeding will be otherwise dismissed. Mr Nakane will be ordered to pay the respondent’s costs.

Associate:

Dated:    25 July 2014