FEDERAL COURT OF AUSTRALIA

New Zealand v Templeton [2017] FCA 745

ORDERS

THE COURT ORDERS THAT:

1.    The order made by the Magistrates Court of Queensland on 16 January 2017 that the respondent be released pursuant to s 34(2) of the Extradition Act 1988 (Cth) is quashed.

2.    A magistrate of the Magistrates Court of Queensland order, by warrant, that the respondent be surrendered to the applicant.

3.    The parties file any written submissions as to costs (not exceeding five pages) by 4 pm on 12 July 2017.

4.    The parties file any submissions in response (not exceeding five pages) by 4 pm on 19 July 2017.

5.    If any written submissions are filed in accordance with orders 3 and 4, the issue of costs will be determined on the papers.

6.    If written submissions are not filed in accordance with orders 3 and 4, there will be no order as to costs.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 16 January 2016, the applicant made a request to an Acting Magistrate of the Magistrates Court of Queensland that proceedings be conducted under s 34(1) of the Extradition Act 1988 (Cth) (the Act).

2    The Acting Magistrate declined to order that the respondent be surrendered to New Zealand and instead ordered, pursuant to s 34(2) of the Act, that the respondent be released.

3    The applicant now seeks review of the Acting Magistrate’s order. For the reasons that follow, the application for review should succeed.

Proceedings in the Magistrates Court

4    On 29 September 2015, the North Shore District Court in New Zealand issued a warrant for the arrest of the respondent.

5    On 21 December 2016, a Magistrate in Victoria indorsed the warrant pursuant to s 28 of the Act.

6    On 16 January 2017, the respondent was arrested and brought before the Magistrates Court of Queensland.

7    The New Zealand warrant and an affidavit sworn by an officer of the Australian Federal Police (AFP) were in evidence before the Acting Magistrate.

8    The warrant was issued in respect of charges that on 30 January 2015 at Auckland, the respondent committed aggravated burglary contrary to s 232(1)(a) of the Crimes Act 1961 (NZ) and wounding with intent to cause grievous bodily harm contrary to s 188(1) of that Act. The maximum penalty for each offence is 14 years imprisonment.

9    The allegations against the respondent were described in the AFP officer’s affidavit as follows:

At approximately 9pm on the 30th of January 2015 the defendant and an associate went to the victim’s address.

At the time the defendant was armed with a wooden bat about 50cm long that was concealed down his pants.

The defendant and his associate entered the house through an open rear door without being invited at which time the victim was sitting down at a computer desk.

The defendant stated to the victim that he had been calling him a “nark”. The term nark is slang for someone who informs on another person.

The defendant then punched the victim in the head with a closed fist without provocation.

One of the victim’s flatmates on seeing this has then ran to his bedroom and locked himself in the room and pressed his body against the door to prevent the defendant entering the room.

The defendant began to try and smash down the door to this bedroom. As a result there was significant damage to the door and door surrounds.

The victim KYLE has then ran out of the house chased by the defendant and his associate who caught him on the driveway and began to hit him with the wooden bat about the body and face area.

They struck the victim on the legs arms and head causing significant pain and bruising before forcing the victim back into the house.

The victim KYLE managed to escape from the house a second time before he was caught in his back yard.

The victim was again assaulted by the defendant and his associate who punched, kicked and struck him with the baton while on the ground causing further injuries to the victim’s body including a severe laceration to the inside of his mouth.

10    The AFP officer’s affidavit went on to indicate that the respondent had arrived in Australia on 4 February 2015 and that he had initially resided at an address in Victoria and then at another address at the Gold Coast in Queensland.

11    The applicant’s counsel, Mr Vail, perhaps anticipating that the respondent might apply for an adjournment and seek bail under s 32(3) of the Act, focussed his submissions on the question of bail. Mr Vail submitted that the respondent was a flight risk because he had “moved around quite a bit” within Australia and had been arrested at the airport, but conceded that the respondent had no previous charges for failing to appear.

12    A duty solicitor, Mr Hanly, appeared for the respondent. Mr Hanly indicated that the respondent wished to contest the surrender. Mr Hanly pointed out that almost two years had elapsed since the commission of the alleged offences. He said the respondent had lived at one address in Victoria and worked full time there, before moving to the Gold Coast in September 2016.

13    Mr Hanly continued:

Mr Templeton instructs me to make the submission that he believes that it would be unjust for him not to be able to return to New Zealand himself, which is what he proposes to do. He does propose to return to New Zealand to face the charges, but wishes to do so under his own steam. He is a dual-national, Australian citizen as well as a New Zealand citizen. And he, in his instructions, has asked me to urge upon the court to give him the opportunity now that he’s aware of the charge that he faces to return at a date and time at the court’s convenience so he can make arrangements with his partner. He has a mortgage here, he has a car and is making payments. So if he were to be surrendered and returned without the ability to make provisions, then he said he will default on his mortgage payments and likely default on his payments with respect to his vehicles.

14    The Acting Magistrate asked whether Mr Hanly was submitting that the respondent should be granted bail to allow him to return to New Zealand of his own accord. Mr Hanly responded:

Well, my understanding…is that it’s not so much a granting of bail, your Honour just wouldn’t order that he be surrendered. So essentially, just gets released…Your Honour either surrenders him or you don’t. There’s no formal giving of bail. If he’s not surrendered then he is just at large. That wouldn’t prevent another application being brought to have him bought before a court. So if he, for example, did not surrender himself under his own steam to New Zealand, then a further application could be made to have him arrested and obviously, in that instance, if he had not availed of himself the opportunity to return to New Zealand, then it’s unlikely he would ever be able to contest that surrender.

15    In reply, the applicant’s counsel submitted that the warrant was indorsed on 21 December 2016 and that the delay in arresting him was not excessive. He did not respond to the submission that the Court should allow the respondent to voluntarily return to New Zealand.

16    The Acting Magistrate then gave the following decision ex tempore:

Mr Hanly has suggested that he’s relying on s 34 (2), namely that of the lengthy time that has elapsed since the offence was committed or allegedly committed, and that it would be unjust or oppressive or too severe to have…this person be ordered to be surrendered to New Zealand.

Mr Hanly has stated that he has resided at one address from…February 2015 until September 2016, then resided from September 2016 to the present day at a subsequent address at his property, that is residing with …his partner who owns the property, that he has some mortgage payments to organise, that was(sic) has been submitted by Mr Hanly that the defendant will surrender himself in his own good time, having looked after some matters at home here.

Now, I’ve asked Mr Vail about the period of time that the defendant has resided at particular addresses and he says that he has limited information to supply to the Court and that it would have been only one year, approximately one year from the issue of the warrant, that…the defendant has lived at that one place. That it would not be unjust or oppressive to order that.

Well, I consider, having looked at the situation, and really the lack of confirmation about the defendant’s whereabouts, because there’s no record of any breaches of bail in the past, and breach of the Bail Act at all, and that the defendant has resided, according to what Mr Hanly stated, at just two separate addresses…since February 2015.

So I consider that under section 34 that the application for an order to surrender the defendant to New Zealand should be denied as being unjust and I’ll order that the defendant be released.

Now, one would expect that, defendant, you would make your own way over and have the matter finalised, because I don’t think it’s going to go away. So I make that order accordingly that I deny the request and that the defendant should be released.

The application to this Court

17    The applicant’s amended originating application seeks an order pursuant to s 35(2)(b) of the Act quashing the Acting Magistrate’s order on the grounds that:

(a)    his Honour erred by misconstruing the law, relying on irrelevant considerations and failing to give adequate reasons;

(b)    it is not unjust, oppressive or too severe a punishment to surrender the respondent to New Zealand.

18    The applicant argues that the Acting Magistrate’s finding that the respondent could have been found at two addresses within two years and had not breached the Bail Act 1980 (Qld) was irrelevant to the question of whether it would be unjust to surrender the respondent under s 34(2) of the Act.

19    The applicant submits that in circumstances where the respondent volunteered to surrender himself to New Zealand, s 33A of the Act was invoked and the Acting Magistrate was bound to advise the respondent that he would be committed to prison and surrendered to New Zealand as soon as practicable.

20    The applicant argues that by taking into account the respondent’s indication that he would return to New Zealand in his own time as a circumstance supporting a finding of satisfaction that it would be unjust to surrender the respondent, the Acting Magistrate misconstrued and misapplied the Act. The applicant submits that the respondent’s indication that he would surrender himself was an irrelevant consideration.

21    The applicant also submits that the Acting Magistrate’s reasons are inadequate as they fail to set out any relevant reason for his Honour’s satisfaction that it would be unjust to surrender the applicant.

22    The material before the Acting Magistrate was also relied on before this Court. That material was supplemented by further affidavits filed by both sides, which were read without objection.

23    The applicant read an affidavit annexing an affidavit sworn by a New Zealand police officer, which seeks to explain the delays in the extradition proceedings. The officer deposes that on 2 February 2015, the complainant identified the respondent as his attacker. On 16 February 2015, police executed a search warrant at the respondent’s address. The respondent was not located there, but the alleged co-offender was present and was arrested and charged. On 17 February 2015, police established that the respondent had left New Zealand some two weeks earlier. The deponent states that the respondent had been scheduled to return to New Zealand on 16 February 2015, but had remained in Australia.

24    The New Zealand police officer says that a number of measures were taken to locate the applicant, including putting a border alert in place and speaking to the respondent’s employer. On 17 February 2015, a police officer made contact with the respondent by telephone and the respondent is alleged to have told the police officer to “F__ off”.

25    On 18 March 2015, charges were filed against the respondent and on 25 March 2015, a warrant for his arrest was issued in the North Shore District Court. The police officer’s affidavit indicates that in accordance with s 61(1)(b) of the Extradition Act 1999 (NZ), extradition requests must be authorised by the Commissioner of Police or his delegate. Files are submitted to the delegate through INTERPOL. The file was submitted to INTERPOL in May 2015 and technical irregularities were identified in the arrest warrant. On 29 September 2015, a new arrest warrant was issued and on 27 November 2015 the delegate granted authority to proceed with the extradition.

26    It may be noted that while the affidavit explains the steps that were taken, no explanation is provided as to why each step took so long.

27    The affidavit states that from January 2016, there were communications between the investigating police officer and INTERPOL, resulting in INTERPOL eventually sending the extradition request to Australia on 21 October 2016. No explanation is provided for the delay between January and October 2016.

28    The police officer’s affidavit indicates that the alleged co-offender pleaded guilty on 2 June 2015 and was sentenced to three years and four months imprisonment in the North Shore District Court. The Court’s audio-recording system malfunctioned during the sentencing hearing and the sentencing remarks were not audio recorded. However, the prosecutor who was present at the hearing has provided a note summarising the judge’s sentencing remarks.

29    The respondent deposes that he is both an Australian and New Zealand citizen. He had been living in New Zealand since 1998, but decided to return to Australia in 2014. He booked his ticket on 16 December 2014 and then departed New Zealand on 4 February 2015. The inference he seeks to have drawn is that he did not leave New Zealand in order to avoid criminal charges.

30    The respondent deposes that he received a call on his mobile phone from a New Zealand police officer on 16 February 2015. The police officer said that he needed to talk to the respondent about something, but did not say what it was about. When the respondent said that he was living in Australia, the police officer started “screaming and yelling and calling me a liar as he had my NZ passport”. The respondent says that he told the police officer he would not continue to talk to him while he was so aggressive.

31    The respondent says that the police officer rang again about two hours later and apologised and said that he now realised that the respondent was living in Australia. The police officer said that he still needed to talk to the respondent and asked the respondent to get back in contact with him when he returned to New Zealand. The respondent said that if he ever came back he would get in contact with him, and the police officer said that was fine.

32    The respondent deposes that when he arrived in Australia, he obtained work in Victoria. He was on the electoral roll. The respondent met a woman who became his partner in March 2016. In August 2016, he moved to Coffs Harbour in New South Wales so he could be closer to his partner. He moved to the Gold Coast in September 2016. The respondent believes that he could easily have been located by police at any time from the time he left New Zealand.

33    The respondent deposes that he has a shared mortgage with his partner and that if he were to suddenly leave, his partner would struggle to meet their financial commitments. He indicates that his extradition would also have significant emotional impact on his partner and her son.

34    The respondent states that the victim of the alleged offence is a serious drug offender who has links to organised crime in New Zealand, including bikie gangs. The respondent believes that if he had been charged in February 2015, he would have been allowed to go at large on bail, but that if he were extradited to New Zealand he would be remanded in custody and be at risk from the alleged victim’s associates.

35    The respondent states that his co-accused pleaded guilty because his mental state was deteriorating. The co-accused has said that he cannot provide the respondent with any assistance in preparing his defence. The respondent claims that this would cause him a disadvantage in defending the case.

36    The respondent states that if he had been advised of the charge in February 2015, or even later in 2015, he would have returned to New Zealand to assist the police with their enquiries.

37    The respondent’s partner has sworn an affidavit in which she deposes to the hardship that would be caused to her and to her son if the respondent were surrendered to New Zealand.

38    An affidavit from a friend of the respondent essentially confirms the respondent’s account of the telephone call from the New Zealand police officer on 16 February 2015.

39    The respondent’s mother deposes that she has lived at the same address in New Zealand for about 20 years and that no-one from the New Zealand police service approached her to obtain the respondent’s Australian address or telephone number.

40    The respondent’s father has provided an affidavit, but it appears to be of little significance.

41    There is also an affidavit sworn by Gary Gotlieb, a barrister in New Zealand. He was the respondent’s lawyer in relation to a criminal charge in 2012. Mr Gotlieb deposes that in August 2015, he received an email from the respondent who wanted to know if a warrant had been issued for his arrest in New Zealand in relation to an investigation involving the co-accused and whether he was at liberty to travel internationally. Mr Gotlieb says he spoke to someone he believes was a prosecutor at the North Shore police station and was informed that no warrant had been sought.

42    Mr Gotlieb states that he is surprised that the co-accused did not challenge the burglary charge and did not go to a case review to seek a “sentence indication”. Mr Gotlieb says that he is instructed that the co-accused pleaded guilty because he was in custody and desperate to resolve the matter and was told that he would get one years’ imprisonment if he pleaded guilty. Mr Gotlieb says that because of the co-accused’s actions, the respondent is “completely prejudiced in being able to have a fair hearing in challenging the charges he is facing”. He also understands that the sentencing notes for the co-accused are not available. He notes that under s 8(e) of the Sentencing Act 2002 (NZ), the Court must take into account general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.

43    The applicant has not filed any affidavits contradicting the facts deposed to in the affidavits relied on by the respondent. Nor did the applicant cross-examine any witnesses on their affidavits. In the absence of any challenge, I accept the facts set out in those affidavits.

44    The applicant does criticise Mr Gotlieb’s evidence insofar as it consists of his opinion that the applicant could not have a fair hearing in New Zealand. Mr Gotlieb’s opinion seems to be based on the fact that the respondent’s co-accused pleaded guilty, that the co-accused apparently failed to get a sentence indication and that there is no audio-recording of the reasons given for the co-accused’s sentence. He asserts that these matters mean that the respondent could not get a fair hearing in New Zealand, but does not explain why that is so.

The legislation

45    Section 34 of the Act provides, relevantly:

34    Surrender warrants

(1)    Where:

(a)    either:

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

…

(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.

…

(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.

46    Section 35 of the Act provides, relevantly:

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;

…

Consideration

47    The application for review of the Acting Magistrate’s order is brought under s 35(1)(b) of the Act. The first question is as to the nature of the review to be conducted by the Court.

48    Section 35(6)(d) provides that the Court 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.

49    In Kenneally v New Zealand (1999) 91 FCR 292, the Full Court said at [4]:

Proceedings for review pursuant to s 35 of the Act are by way of rehearing de novo.

50    As to what is meant by a “rehearing de novo”, in Heslehurst v Government of New Zealand [2000] FCA 1311, Branson J said:

27    …I understand their Honours to have meant thereby that the powers of the Court are not exercisable in the proceedings for review only where error by the magistrate can be demonstrated; rather the Court is to determine itself what order is appropriate to be made regardless of whether error by the magistrate is demonstrated (see Allesch v Maunz [2000] HCA 40 at para 23). It seems that the Full Court did not intend to imply that the review was a hearing de novo in the strict sense of a complete re-running of the proceeding under s 34 before this Court as though the hearing before the magistrate had not taken place. Even in a case in which New Zealand applied to the Court for a review of the order of the magistrate, on a hearing de novo in this strict sense, the person whose surrender to New Zealand is sought would have to start again and seek to satisfy the Court of the matters specified in s 34(2) of the Act.

28    In my view, the discretion given to the Court by s 35(6)(d) to “have regard to evidence in addition to or in substitution for the evidence that was before the magistrate” suggests against the review hearing being a hearing de novo in the strict sense which I have identified. It is appropriate, in my view…for an application for review to identify the grounds upon which the applicant says that the order of the magistrate should be quashed and, in the absence of special circumstances, for the consideration of the Court to be limited to those grounds.

51    A magistrate’s function under s 34 of the Act is administrative, rather than judicial: Newman v New Zealand (No 2) (2012) 206 FCR 17 at [17]. The Full Court in Kenneally characterised the nature of the review under s 35 of the Act in the way described by Mason J in Builders Licensing Board v Sperway Constructions (SYD) Pty Ltd (1976) 135 CLR 616 at 621 as follows:

Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect.

52    In Heslehurst, Branson J distinguished the “rehearing de novo” described in Keneally from a “hearing de novo in the strict sense”. The difference is that in the former, the applicant need not start all over again and the reviewing court may have regard to both the material before the magistrate and any additional evidence.

53    In Heslehurst, Branson J said that it is appropriate for an application for review to identify the grounds upon which the applicant says the order of the magistrate should be quashed. Her Honour was not thereby suggesting that it is necessary for an applicant to demonstrate error, but was instead referring to a procedural requirement. Although an applicant for review need not demonstrate error, logically the applicant will attempt to persuade the Court that there is a reason to make a decision different to the decision made by the magistrate. An applicant may do so by demonstrating that the magistrate made a legal, factual or discretionary error (including error as to the weight given to relevant factors), or by adducing additional evidence that was not before the magistrate. The grounds relied on by the applicant must be identified in order to give the respondent notice of the case that the respondent has to meet.

54    In this case, the applicant alleges that the Acting Magistrate made legal errors and also submits that the new evidence it has placed before the Court warrants a different decision being made. The new evidence seeks to explain the delay of 22 months between February 2015 and December 2016 for making the application under s 28 of the Act for indorsement of the warrant.

55    The respondent counters by arguing that the Acting Magistrate did not make the errors alleged and by leading further evidence to demonstrate that the delay was the fault of the New Zealand police, and not his fault, and that the delay has caused him detriment.

56    In order to assess the applicant’s submission that there were legal errors, it is necessary to examine how his Honour reached the conclusion that the respondent’s surrender would be unjust.

57    It is discernible from the Acting Magistrate’s reasons that six matters influenced his decision, namely:

(a)    the length of time that had elapsed since the commission of the alleged offences;

(b)    that the respondent had mortgage payments to organise;

(c)    that the respondent had instructed his solicitor that he would make his way to New Zealand in his own time after looking after some matters at home;

(d)    that the respondent had only lived at two addresses since he returned to Australia;

(e)    that the respondent had no convictions for breaches of bail; and

(f)    if the respondent does not return to New Zealand, the matter was unlikely to go away.

58    The Acting Magistrate’s reasons fail to adequately explain the connection to all of the matters he referred to and the conclusion that it would be unjust to surrender the respondent. In particular, the relevance of the absence of previous breaches of bail and the fact that the respondent had lived at two addresses in Australia is not readily apparent. It is also unclear whether the Acting Magistrate decided that the delay by the New Zealand authorities was excessive.

59    It is usually necessary that reasons for judgment expose the path of reasoning which led to the conclusion: New Zealand v Johnston (2011) 274 ALR 509 at [102]. Some allowance must be made for the fact that the Acting Magistrate’s reasons were given ex tempore: Maviglia v Maviglia [1999] NSWCA 188 at [1]. Even so, his Honour’s path of reasoning is not understandable without conjecture or speculation as to the relevance of some of the matters he mentioned. I accept the applicant’s submission that the reasons are inadequate.

60    The applicant next argues that the respondent consented to his surrender, enlivening s 33A(2) of the Act. The transcript records that the respondent’s solicitor said that his client “instructs that he wishes to contest [the] surrender”. The solicitor’s subsequent indication that the respondent proposed to return to New Zealand “under his own steam” was not a consent to his surrender. There is a clear difference between a person’s offer to voluntarily return and the person being involuntarily surrendered. The applicant’s argument is without substance.

61    The applicant submits that it was impermissible for the Acting Magistrate to take into account the respondent’s indication that he would voluntarily return to New Zealand. This argument requires construction of the reasons and the relevant statutory provisions.

62    The Acting Magistrate noted that the respondent had instructed his solicitor that he would make his own way to New Zealand. His Honour also noted that if the respondent failed to return to New Zealand, the matter was unlikely to go away, implying that another application could be made for the respondent’s surrender. These matters apparently contributed to his Honour’s conclusion that it would be unjust to surrender the respondent.

63    On one view, the Acting Magistrate may have reasoned that there was undue delay on the part of the New Zealand authorities, causing the respondent to change his circumstances by taking on the responsibility of buying a house and obtaining a mortgage; and making it unjust for him to be committed to prison pending his surrender without having the chance to get his affairs in order and then return to New Zealand in his own time.

64    Section 34(2) of the Act requires a magistrate to order that the person be released if the magistrate is satisfied by the person that, relevantly, “for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person”. The word “for” indicates that there must be a connection between the reason and the injustice, oppression or severity of the punishment.

65    The magistrate may take into account the consequences of surrender, including detention pending trial: see Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [42]. In my opinion, the word “surrender” in s 34(2) of the Act also encompasses the consequences of the orders for surrender that must be made under s 34(1). A necessary consequence of surrender is that the magistrate must, pursuant to s 34(1) of the Act, order that the person be committed to prison pending the surrender of the person to New Zealand. A magistrate might conclude that such imprisonment makes the surrender unjust or oppressive or too severe a punishment because it is clear that the person will ultimately receive a non-custodial sentence, or the person is in poor health, or there are other compelling circumstances that make committal to prison particularly harsh. The consequences of an order for committal to prison pending surrender may, in a particular case, make the surrender unjust, oppressive or too severe a punishment. There was no error in the Acting Magistrate taking into account the fact that the respondent would be committed to prison pending surrender.

66    However, the Acting Magistrate also seems to have relied on the respondent’s indication that he would voluntarily return to New Zealand if he were released instead of surrendered.

67    A person arrested under an indorsed warrant who wishes to return voluntarily return to New Zealand might argue that there are special circumstances for bail under s 32(3) of the Act. If bail were granted on that basis and the person did not then go to New Zealand, bail could be revoked. In contrast, where a magistrate orders the person’s release under s 34(2) of the Act, the proceeding is at an end. There is no statutory mechanism to reopen the proceeding on the basis that the person failed to honour his or her promise to voluntarily return. In a statutory context providing for involuntary extradition to New Zealand, the absence of such a mechanism tells against any legislative intention to allow a magistrate to take into account an indication that the person will return voluntarily if he or she is not surrendered. The possibility of a further application for surrender being made, which may require a further warrant to be issued and indorsed, is not a sufficient answer. A magistrate is required to determine the immediate application on its own merits.

68    It is impermissible for a magistrate to take into account a person’s indication that he or she will voluntarily return to New Zealand when considering whether surrender would be unjust, oppressive or too severe a punishment. Correspondingly, it is impermissible for a Court reviewing a magistrate’s decision to take into account such an indication. Accordingly, I will exclude that matter from my consideration.

69    The respondent submits that, having regard to all the evidence presently before the Court, his surrender would be unjust or oppressive. I do not understand the respondent to contend that his surrender would be too severe a punishment. The expression “unjust” is directed primarily to the risk of prejudice to the person in the conduct of the trial itself, while “oppressive” is primarily directed to hardship resulting from changes in the person’s circumstances; but there is room for overlapping: New Zealand v Moloney (2006) 154 FCR 250 at [65]-[66]; Kakis v Government of Cyprus [1978] 1 WLR 779 at 782-783.

70    The matters relied on by the respondent in support of his submission are as follows:

(a)    The delay of 22 months between the alleged offences and the application for indorsement of the New Zealand warrant under s 28 of the Act was excessive.

(b)    The New Zealand police failed to inform the applicant that a warrant had been issued for his arrest and, in fact, he was misled into thinking that there was no warrant as a result of his telephone discussion with a police officer on 16 February 2015 and the representation by a prosecutor to Mr Gotlieb that there was no warrant. It would have been easy enough for the New Zealand police to contact the respondent throughout the period of nearly two years after the alleged offences.

(c)    As a result of the delay, the failure to tell him that a warrant had been issued and the misleading conduct, the applicant’s circumstances have changed substantially. He has obtained employment which would be disrupted if he were surrendered to New Zealand. He now has a mortgage and vehicle loans and faces significant financial detriment if, as can be expected, bail is either refused in New Zealand or his bail conditions do not allow him to return to Australia. Further, he now has a partner who will be affected financially and emotionally, as will her child.

(d)    The delay and conduct of the New Zealand police has also caused prejudice to him because he would have returned voluntarily to New Zealand if he had known about the charges in 2015, and he would then have been in a much better position to obtain bail.

(e)    The respondent is in danger from the alleged victim’s associates while he is in custody in New Zealand.

(f)    The respondent is prejudiced in his conduct of the criminal proceedings by the absence of a transcript of the sentencing proceedings for the co-accused. He is also prejudiced by the co-accused’s plea of guilty, the refusal of the co-accused to co-operate in the respondent’s defence and the conduct of the co-accused in failing to obtain a sentence indication.

71    I accept that the respondent did not leave New Zealand in order to avoid facing criminal charges. I consider that the delay between the alleged offences and the application for an endorsement of the warrant on 21 December 2016 was excessive. The delay was not the fault of the respondent. The delay on the part of the New Zealand authorities is largely unexplained. The applicant has not explained, for example, why it took some six months for irregularities in the arrest warrant to be identified, a new warrant to be obtained and the Police Commissioner’s delegate to grant authority to proceed with the extradition. The applicant has not explained why it then took nine months for the extradition request to be sent to Australia. In the absence of any explanation, the delay seems extraordinary.

72    While police could not normally be criticised for failing to keep a person accused of an offence informed as to whether a warrant had been issued for his arrest, there is uncontradicted evidence that the respondent was misled into thinking that there was no warrant. There is also unchallenged evidence that the respondent would have returned to New Zealand voluntarily if he had been told by late 2015 that a warrant had been issued.

73    While mere delay may, of itself, often be insufficient, the consequences of delay can be significant, especially where the delay is not the fault of the alleged offender: New Zealand v Moloney at [77]; New Zealand v Venkataya (1995) 57 FCR 151 at 166.

74    The respondent’s employment will be affected and he faces significant financial detriment because he has a mortgage and vehicle loans which he will be unable to service if he is surrendered and committed to prison to await his surrender. In addition, the fact that he would now return to New Zealand involuntarily means that it is less likely that he would obtain bail. I accept that the respondent and his family are prejudiced by the delay and the misleading conduct of New Zealand police.

75    I do not accept that the respondent is in danger from the complainant’s associates while he is in custody in New Zealand. The respondent’s evidence in that regard is speculative and, in any event, it is open to him to seek such protection from the prison authorities as he requires. Further, any such concerns will no doubt be taken into account in any application for bail he may make in New Zealand.

76    I do not accept that the respondent has demonstrated that he will be prejudiced in the conduct of his defence or in any sentence. Mr Gotlieb’s evidence as to such prejudice is vague, speculative and seems, quite frankly, fanciful. I note that the co-accused’s prosecutor has provided his account of the judge’s sentencing remarks. I do not accept that a sentencing judge will not be able to achieve parity, notwithstanding the absence of an audio recording of the sentencing of the respondent’s co-accused. An assumption must be made that the criminal proceedings in New Zealand will be fair: see New Zealand v Maloney at [36]. Further, the fact that the sentencing will proceed on the basis of less than all of the matters that could relevantly bear on the matter does not make the hearing unfair: R v Edwards (2009) 255 ALR 399 at [31], New Zealand v Johnston at [127]. I do not accept that the co-accused’s refusal to co-operate with the respondent means that he cannot have a fair trial.

77    The involuntary extradition of a person means that there will necessarily be a level of disruption to the person’s life. The person also faces the loss of his or her liberty while awaiting removal. Those matters are inherent in extradition. The legislation contemplates that something more than the disruption, inconvenience and detriment that will be caused to every person must be shown if the surrender is to be regarded as unjust, oppressive or too severe a punishment.

78    In this case, I accept that because of the delay and the misleading conduct of the New Zealand police, the respondent’s position has changed and he and his family will suffer more than the usual disruption, inconvenience and detriment. Against that consideration, the gravity of the alleged offences is an important matter to be taken into account: New Zealand v Venkataya at 166. The alleged offences are serious – involving planned, sustained violence with a weapon. There is also a significant public interest in allowing alleged criminal conduct to be dealt with in accordance with the processes of the criminal law, whether in Australia or elsewhere: In re Arton [1896] 1 QB 108 at 111; Snedden v Republic of Croatia (2009) 178 FCR 546 at [10] (overturned on appeal, but not on this point).

79    In these circumstances, I am not satisfied that because of the lengthy period that has elapsed since the offences were allegedly committed, or for any other reason, it would be unjust or oppressive to surrender the respondent.

80    The Court will order, pursuant to s 35(2) of the Act, that the order of the Acting Magistrate made on 16 January 2017 be quashed and that a magistrate order, by warrant, that the respondent be surrendered to the applicant.

81    I will hear from the parties as to costs. My preliminary view is that there should be no order as to costs. The applicant’s argument that it was impermissible to take into account the respondent’s indication that he would return to New Zealand voluntarily was raised for the first time in this Court. That was a matter that might well have influenced the outcome if it had been raised before the Acting Magistrate. Further, the Acting Magistrate seems to have been influenced by the delay of the New Zealand authorities, which has still not been adequately explained. In these circumstances, both parties appear to have contributed to the need for the review proceedings.

82    If either party wishes to contend for a different costs order, it should file written submission within seven days. Any submissions in response should be filed within a further seven days. I will decide any question of costs on the papers. In the absence of written submissions being filed in accordance with the orders I propose to make, there will be no order as to costs.

Associate:    

Dated:    5 July 2017