FEDERAL COURT OF AUSTRALIA

New Zealand v Templeton [2017] FCA 804

ORDERS

THE COURT ORDERS THAT:

1.    on or before 25 January 2017 the applicant file and serve any further material upon which it proposes to rely;

2.    on or before 31 January 2017 the respondent file and serve any material upon which he proposes to rely;

3.    on or before 3 February 2017, the applicant file and serve any material in reply;

4.    the matter be listed for hearing at the earliest possible date after 3 February 2017;

5.    the applicant file a written outline of submissions not later than 7 days prior to the hearing date;

6.    the respondent file a written outline of submissions not later than 3 days prior to such date;

7.    the respondent be released on bail on the following conditions:

(a)    that he reside at 7 Sarah Place, Ashmore, Queensland;

(b)    that he report at Nerang Police Station on Mondays, Wednesdays and Fridays of each week;

(c)    that he surrender to the District Registrar of the Federal Court of Australia in Brisbane all passports held by him in any name, including his Australian and New Zealand passports;

(d)    that he swear an affidavit that he holds no other travel document that may facilitate his departure from Australia;

(e)    that he not attend within one kilometre of any international point of departure or any other commercial airport;

(f)    that he appear at any adjourned hearing of the application for review filed on 17 January 2017; and

(g)    that on written notice given by the District Registrar at Brisbane, he surrender himself into the custody of an officer of the Australian Federal Police or that of a District Registrar or Deputy District Registrar of the Federal Court of Australia.

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

REASONS FOR JUDGMENT

DOWSETT J:

1    On 29 September 2015 a District Court Judge in New Zealand issued a warrant for the arrest of Ryan Youngman Templeton upon two charges, one of committing burglary with a weapon and the other of wounding with intent to cause grievous bodily harm. These offences are alleged to have occurred on 30 January 2015.

2    It appears that shortly after that date Mr Templeton left Auckland and travelled to Australia on a return ticket and has not since returned to New Zealand. As far as I know, he has, since that date, lived and worked in Victoria and, more recently on the Gold Coast. Since August last year, he has resided there with his partner and a child. He lives in a property which is owned by his partner and to which he is contributing.

3    On 21 December 2016, the New Zealand warrant was endorsed pursuant to the Extradition Act 1988 (Cth), (the “Extradition Act”). Yesterday after Mr Templeton had boarded an aircraft bound for China at Brisbane International Airport, he was arrested upon the authority of the warrant. He was taken before a State Magistrate pursuant to the relevant provisions of the Extradition Act. Instead of his being remanded into custody for hearing of the application for extradition at a later date, on the advice of the duty solicitor, he sought an immediate hearing of the matter. The Magistrate acceded to that request and concluded that he ought not be extradited. He was released from custody.

4    Thereafter, he contacted the Australian Federal Police in order to ascertain whether he was at liberty to leave the country. He and his partner intended to go to China on vacation. He was told by the Australian Federal Police that there was no bar to his leaving the country. Those matters are not in dispute.

5    This morning, at some time between 9.00 am and 9.30 am, I was asked to hear an application, brought on behalf of the New Zealand Government, to review the decision of the Magistrate. The Magistrate's reasons for his decision are not yet available. I was told that any review of the Magistrate’s finding would focus on the proposition that there had been undue delay between the alleged commission of the offence and the application for extradition. I was told that the flight was to leave Brisbane Airport at about 10.00 am. By the time the matter came on for hearing, that departure time was fast approaching. I was not, at that stage, told that Mr Templeton had spoken to the Australian Federal Police concerning his entitlement to leave Australia. That is a matter which, in my view, ought to have been disclosed on an ex parte application. However, it seems that the reason for its non-disclosure was that those representing New Zealand were not aware of it. Presumably, the Australian Federal Police had not realized that there was any significance attaching to it. I am told that at the airport Mr Templeton contacted Border Force in order to ensure, once again, that he was at liberty to depart. He subsequently boarded the aircraft but was then removed pursuant to the warrant which I had earlier issued. These events no doubt resulted in great embarrassment for him and his partner, inconvenience to other passengers and expense to the airline.

6    I ordered that he be produced before me today in order to determine the future conduct of the matter and the question of his detention or otherwise. A timetable has now been put in place, which timetable will hopefully bring the review proceedings to hearing at the earliest possible time. Mr Templeton applies for bail. Section 35(6)(g) deals with the question of bail in circumstances such as those in the present situation. The net effect of the section is that bail will only be granted if there are special circumstances justifying such a course.

7    Obviously there are many factors which are relevant to the exercise of the discretion to grant bail, whether pursuant to the Extradition Act or otherwise. The risk to the public and the risk of flight are amongst the most important. However it is also important that a person who is charged with an offence or awaiting resolution of some outstanding matter not be unnecessarily detained whilst the wheels of justice grind in their usually slow way. Another matter which is frequently taken into account in connection with a bail application is any previous criminal misconduct. Mr Templeton has previous convictions, but I am not aware of how long ago such conduct occurred.

8    Another matter which is relevant is the seriousness of the offence with which he is charged. I am satisfied that this offence is one of some considerable seriousness. It appears to have involved quite significant violence against a person who was, at least to some extent, not able to defend himself. It is also true that the courts tend to be particularly concerned about the possibility of flight in the face of extradition proceedings. It frequently seems that detention in Australia is preferred to extradition.

9    In the end, however, for present purposes, it seems to me that the most important aspect for consideration is the risk of flight. There is no suggestion that Mr Templeton has, at any other time when engaged with the criminal justice system, here or in New Zealand, failed to appear. There is no suggestion, as I understand it, that there is anything which might suggest a substantial risk of flight. He has been living in Australia for two years, has been in employment and has family ties here. His partner has property here. All of these things are considerations which would normally militate in favour of the grant of bail, indicating as they do that there is little risk of flight. On the other hand, the apparent seriousness of the offence militates against a grant of bail.

10    As to the question of special circumstances, I am of the view that the conduct in which he engaged after the hearing yesterday, and before seeking to depart the country today was, in the circumstances, quite unusual. One would not have expected a person who had escaped the prospect of imprisonment in Australia and extradition would consult with the Australian Federal Police about his entitlement to leave the country if he proposed to do so illegally.

11    I cannot escape the inference that he demonstrated a desire to comply with the law, insofar as it might decide that he should be returned to New Zealand. I draw that inference notwithstanding the circumstances in which he left New Zealand, very shortly after the alleged offence, and on a return ticket. In the circumstances, I consider those circumstances to be sufficiently special to demonstrate that he will probably remain in Australia to participate in the extradition process and abide by its outcome.

12    In the circumstances, I consider that there are special circumstances justifying the grant of bail.

13    The bail will be conditional upon:

    his continued residence at 7 Sarah Place, Ashmore, in the State of Queensland;

    his reporting to the Nerang Police Station on Mondays, Wednesdays and Fridays of each week;

    his surrender, to the Registrar of the Federal Court at Brisbane, of all passports held by him in any name, in particular his Australian and New Zealand passports; and

    his filing and serving an affidavit deposing to the fact that he holds no other passports or similar travel documents which would facilitate his departure from Australia.

14    A further order will be that he appear at any adjourned hearing of the application for review, filed in this Court today and that, upon notice served upon him by the Court, he surrender himself into custody by attending at the nearest Queensland police station or upon an officer of the Australian Federal Police or a Registrar, District Registrar or Deputy Registrar of this Court.

Associate:

Dated:    19 July 2017