Federal Court of Australia

Kelly v New Zealand [2021] FCA 1434

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Pursuant to s 35(2)(a) of the Extradition Act 1988 (Cth), the Court confirms the orders of Magistrate Bourke made on 30 August 2021.

3.    The applicant will pay the respondent’s costs to be assessed by a Registrar of this Court on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

ANDERSON J:

application

1    The applicant applies under s 35 of the Extradition Act 1988 (Cth) (Act) for review of an order made by Magistrate Bourke on 30 August 2021 under s 34(1) of the Act to surrender the applicant to New Zealand. The applicant, by her originating application dated 13 September 2021, seeks:

(1)    A declaration that the warrant indorsed by Magistrate Bazzani on 28 February 2020 was not a “New Zealand warrant” within the meaning of s 5 of the Act.

(2)    An order in accordance with s 35(2)(b) of the Act quashing the order of Magistrate Bourke made on 30 August 2021.

(3)    An order in the nature of mandamus directing any Magistrate or eligible Federal Circuit Court Judge to order the release of the applicant in accordance with s 35(b)(i) of the Act.

relevant background facts

2    The facts set out in the applicant’s concise statement dated 13 September 2021 were not in dispute between the parties and are as follows.

3    The applicant is a citizen of Australia. The applicant is not a citizen of New Zealand and has never held a New Zealand passport.

4    Between approximately January 2007 and March 2015, the applicant practised as a barrister in New Zealand.

5    From November 2010 until approximately September 2013, the applicant practised as a barrister in New Zealand through the New Zealand-registered entity “Kelly Chambers Limited”.

6    On 22 September 2014, the applicant was charged by New Zealand’s Inland Revenue Department with a number of criminal offences under the Tax Administration Act 1994 (NZ) (NZ Tax Act).

7    The applicant first appeared in relation to the charges on 4 November 2014 and was granted bail unopposed.

8    On 27 February 2015, Judge Crosbie of the Dunedin District Court imposed a condition on the applicant’s bail that she reside at 508 Highgate, Dunedin.

9    On a date prior to 1 May 2015, the applicant’s trial was set down for 14 September 2015.

10    On 1 May 2015, the applicant applied for removal of the residence condition on her bail, or that an alternative place of residence be specified, so that she could relocate to Australia.

11    On a date after 1 May 2015, the Dunedin District Court varied the applicant’s bail to enable her to relocate to Australia.

12    Subsequent to the variation of her bail conditions, and prior to 10 September 2015, the applicant relocated to Australia.

13    On 10 September 2015, the applicant sent an email to the Dunedin District Court advising that her mental health had deteriorated, and this meant that she would be unable to attend at the trial scheduled to commence on 14 September 2015.

14    On 14 September 2015, the applicant did not appear at her trial at the Dunedin District Court scheduled to commence that day.

15    On 14 September 2015, Judge Kellar of the Dunedin District Court determined that the trial should proceed in the applicant’s absence and published a minute of his Honour’s reasons (Minute) for doing so as follows:

[1]    Ms Kelly is charged with a significant number of offences under the Tax Administration Act 1994. She does not appear on 10 September 2015 she sent to the Court an email, the contents of which I will return to in a moment.

[2]    The matter has had something of a protracted history, to circumvent the matter, I refer by reference to Judge Crosbie’s minutes of 19 and 27 February and 6 March 2015 respectively. As to the latter of those minutes, the Judge directed that the setting down of trial be reviewed on 28 July at 9.00 am. Ms Kelly signed a bail bond to appear as at that date.

[3]    She has had various counsel throughout the course of the prosecution, most of whom have had only limited instructions. Due to the inability of her most recent counsel to obtain meaningful instructions that counsel sought and was granted leave to withdraw. Since then, Ms Kelly has been incommunicado until the email of 10 September 2015.

[4]    The Court has endeavoured to make contact with Ms Kelly through her known email address one of which was returned, but one of which until 10 September elicited no response.

[5]    On 28 August 2015 at my direction the registrar sent to Ms Kelly an email asking her to contact the Court urgently in relation to the trial of today. Nothing was heard until her email of 10 September.

[6]    Under s 122 Criminal Procedure Act 2011 the Court may proceed in the absence of the defendant in certain circumstances. Those circumstances exist. She is charged with category 3 offences, she is required to be present. The prosecutor, the form of Mr Tasker has attended. Ms Kelly does not.

[7]    I must be satisfied that Ms Kelly has no reasonable excuse for her non-attendance. Her email the contents of which I will not go into in detail, but as a matter of Court record refers to a moderate to severe anxiety disorder. Nothing to which she refers in the email supported by any independent information. She states however, that she has had help even to write the email and has not had an opportunity of obtaining information to support the contents of it. That simply defies belief.

[8]    Ms Kelly has had months to provide information as to her reasons for non-attendance. Indeed, her email of 10 September 2015 does not seek an adjournment of the trial, it simply explains or endeavours to, why she has failed to appear.

[9]    I must consider the matters in s 121 subs (4) Criminal Procedure Act. I have had regard to her stated reasons for her absence.

[10]    Throughout the course of management of the trial, Ms Kelly either herself or through her counsel has not judicated any matters that are in dispute. If I was to adjourn the trial, the trial would be some time away. There are a large number of witnesses and a significant number of exhibits. It would be a great inconvenience to those witnesses for the matter not to proceed.

[11]    The charges are relatively serious. Some of them carry a maximum penalty of five years’ imprisonment and/or a fine of $50,000. It is not therefore contrary to the interests of justice to proceed, therefore the trial will proceed in Ms Kelly’s absence.

16    Judge Kellar then conducted the applicant’s trial in the applicant’s absence and delivered the following oral judgment on 14 September 2015:

[1]    Ms Kelly is charged with 46 offences, 31 of which are for aiding and abetting Kelly Chambers Ltd to knowingly apply tax deductions for a purpose other than payment to the Commissioner of Inland Revenue. This is failing to account for PAYE. Fifteen of the charges relate to aiding and abetting that same company to knowingly not furnish goods and services tax returns to the Commissioner of Inland Revenue when required to do so by tax law which that company did intending to evade the assessment or payment of tax under a tax law.

[2]    For reasons given earlier Ms Kelly failed to appear. The hearing proceeded in her absence. I have heard viva voce evidence from 10 witnesses who have variously produced some hundreds of documents which have been produced as exhibits.

[3]    For reasons that I will give in writing later I am sure that is satisfied beyond reasonable doubt that the requisite elements of each of the charges are proved. The charges are therefore proved. Ms Kelly is convicted in respect of each of them. She is remanded for sentence to 14 October 2015 at 10.00 am. For whatever value this may be given that Ms Kelly is in Australia I will seek a provision of advice to the Courts that should necessarily include a report as to an electronically-monitored sentence. The starting point however must be a sentence of imprisonment given the nature and seriousness of the offending and the amounts involved. The sentence however will be informed by a number of factors. I would seek the benefit of submissions from the prosecutor. Otherwise the matter is remanded for sentence 14 October at 10.00 am.

17    On 17 September 2015, Judge Kellar delivered his reasons for verdict in respect to the applicant’s trial. Judge Kellar found the applicant guilty in respect of the 46 charges with which she was charged, and ordered that the applicant appear at a sentencing hearing to be held on 14 October 2015.

18    On 14 October 2015, the applicant failed to appear before Judge Kellar for sentencing. Judge Kellar issued a warrant for the applicant’s arrest (October 2015 warrant).

19    The October 2015 warrant recorded that the applicant:

(a)    had been convicted of 46 offences on 22 September 2014;

(b)    those 46 offences were:

(i)    9 charges under s 143 of the NZ Tax Act;

(ii)    22 charges under s 143A of the NZ Tax Act; and

(iii)    15 charges under 143B of the NZ Tax Act.

20    On 26 March 2019, the New Zealand Department of Inland Revenue wrote to the Dunedin District Court requesting that the October 2015 warrant be reissued to correct errors in the warrant.

21    On 29 March 2019, Judge Crosbie of the Dunedin District Court withdrew the October 2015 warrant and issued a new warrant (March 2019 warrant).

22    On 27 February 2020, Federal Agent James Dalton of the Australian Federal Police applied to Magistrate Bazzani of the Magistrates’ Court at Melbourne to indorse the March 2019 warrant under s 28 of the Act.

23    On 28 February 2020, Magistrate Bazzani indorsed the March 2019 warrant under s 28 of the Act authorising execution of the warrant in Australia.

24    On 20 June 2021, the indorsed March 2019 warrant was executed through the arrest of the applicant.

25    Following the applicant’s arrest on 20 June 2021, the applicant applied for bail which was denied and the applicant was remanded in custody. The applicant then requested that surrender proceedings be conducted under s 34 of the Act. The surrender proceedings commenced on 9 August 2021 and involved viva voce evidence from Mr D Tasker the New Zealand prosecutor in the applicant’s trial before Judge Kellar.

26    On 30 August 2021, Magistrate Bourke of the Magistrates’ Court at Melbourne, ordered the surrender of the applicant pursuant to s 34(1) of the Act.

27    On 13 September 2021, the applicant commenced this proceeding pursuant to s 35 of the Act to review the surrender warrant ordered by Magistrate Bourke on 30 August 2021.

STATUTORY SCHEME OF the ACT

28    Part III of the Act makes special provision for extradition from Australia to New Zealand. The procedure for indorsement of New Zealand warrants by Australian magistrates under s 28 of the Act is often referred to as a “backing of warrants” procedure: see New Zealand v Moloney (2006) 154 FCR 250 (Moloney) per the Court at [17]-[24].

29    The relevant provisions of the Act to the grounds of objection raised by the applicant are:

Section 5

New Zealand warrant means a warrant that purports to be issued by a court, a judge, a magistrate or an officer of a court, of New Zealand, being a warrant for the arrest of a person accused or convicted of an offence against the law of New Zealand.

Section 10(1)

Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.

Section 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 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.

Section 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 Judge by or on behalf of the person or New Zealand for proceedings to be conducted under this section;

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

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

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.

Section 35 - Review of magistrate's or Judge's order

(1)     Where a magistrate or eligible 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 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.

(3)     The person or New Zealand, whether or not the person or New Zealand was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court.

(4)     The person or New Zealand is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court is made.

(5)     The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.

(6)     Where the person or New Zealand:

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

(b)     appeals under subsection (3) against an order made on that review; or

(c)     appeals to the High Court against an order made on that appeal;

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;

(e)     in the case of an appeal--the court to which the appeal is made shall have regard only to the material that was before the court that conducted the review;

(f)     if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released, the court to which the application or appeal is made may order the arrest of the person;

(g)     if:

(i)     because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or

(ii)     the person has been arrested under an order made under paragraph (f);

the court to which the application or appeal is made may;

(iii)     order that the person be kept in such custody as the court directs; or

(iv)     if there are special circumstances justifying such a course, order the release on bail of the person;

until the review has been conducted or the appeal has been heard.

(7)     If:

(a)     the Federal Court makes an order under subsection (2) that the person be surrendered to New Zealand or confirming an order under paragraph 34(1)(c); or

(b)     on appeal, the Full Court or the High Court makes an order that the person be surrendered to New Zealand or confirming such an order;

the Federal Court, the Full Court or the High Court (as the case may be) must order that the person be committed to prison pending the execution of the surrender warrant.

30    The application for review of Magistrate Bourke’s surrender warrant made on 30 August 2021 is brought under s 35(2)(b) of the Act.

31    Section 35(6)(d) of the Act 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.

32    The proceeding for review pursuant to s 35 of the Act is by way of a rehearing de novo. In the context of s 35 of the Act, Branson J in Heslehurst v Government of New Zealand [2000] FCA 1311 (Heslehurst) said at [27]-[28]:

…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.

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 (and I do not understand the Full Court in Kenneally v New Zealand to have suggested to the contrary), 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.

33    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].

34    In Kenneally v New Zealand (1999) 91 FCR 292 (Kenneally), the Full Court characterised the nature of the review under s 35 of the Act as a “rehearing de novo” at [4]. This is in the same way described by Mason J in Builders Licensing Board v Sperway Constructions (Sydney) 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 the court will undertake a hearing de novo, although there is no absolute rule to this effect.

35    The Full Court in Kenneally, stated that the “rehearing de novo” pursuant to s 35 of the Act does not require consideration to be given to the evidence relied upon before the court below. The Full Court at [11] found that a review under s 35 was to be "by way of rehearing", and that the Court may have regard to evidence in addition to, or in substitution for, the evidence that was before the magistrate: s 35(6)(d)..

36    In Heslehurst, Branson J at [28] found, with respect to the discretion given to the Court by s 35(6)(d), that it was appropriate for an application for review to identify the grounds upon which the applicant says the orders 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.

37    In the present case, the applicant relies upon the following grounds:

(1)    First, the applicant contends that the March 2019 warrant is not a “New Zealand warrant” as that term is defined in s 5 of the Act (First Ground).

(2)    Second, the applicant contends that pursuant to s 35(2)(b) of the Act, the Court should quash the orders made by Magistrate Bourke on 30 August 2021 and release the applicant from custody immediately. This relief is sought pursuant to s 34(2) of the Act on the basis that it would be unjust, oppressive or too severe a punishment to surrender the applicant to New Zealand (Second Ground).

First Ground

Applicant’s submissions

38    The applicant submits that the March 2019 warrant is not in its terms a “New Zealand warrant” as that term is defined in s 5 of the Act.

39    The applicant concedes that the March 2019 warrant purports to be issued by a judge of the District Court of New Zealand and that the surrender warrant was indorsed by a magistrate in accordance with s 28 of the Act.

40    The applicant submits that the primary issue is whether the March 2019 warrant is “for the arrest of a person accused or convicted of an offence against the law of New Zealand”.

41    The applicant further concedes that:

(a)    she was convicted of offences against the law of New Zealand;

(b)    15 of the offences set out in the March 2019 warrant, namely the last 15 offences alleged against s 143B of the NZ Tax Act, were offences that she was convicted of; and

(c)    in addition to those 15 offences, she was convicted of 31 offences against s 143A(1)(d) of the NZ Tax Act.

42    The applicant submits that the March 2019 warrant is manifestly inaccurate in its description of the offences which the applicant was convicted of in the trial before Judge Kellar. As a consequence, of these defects in the warrant, the applicant submits that the March 2019 warrant is invalid and is not a “New Zealand warrant” as defined by s 5 of the Act.

43    The March 2019 warrant lists charges in a schedule which is divided into three categories as follows:

(a)    Failing to provide information to [Commissioner] – NZ Tax Act, s 143 – Code 9102 – 9 charges.

(b)    Fails to make deductions/withhold of tax – NZ Tax Act, s 143A – Code 9108 – 22 charges.

(c)    Evade/atempts [sic] evade assess/payment tax – NZ Tax Act, s 143B – Code 9375 – 15 charges.

44    The applicant submits that the 9 charges identified with the Code 9102 and the 22 charges identified with the Code 9108 are not offences against the law of New Zealand that the applicant has been charged with, nor convicted of. The applicant, as noted above, concedes that she was convicted of the 15 charges identified by the Code 9375.

45    The applicant submits that the failure of the March 2019 warrant to accurately particularise the charges which the applicant was convicted of, results in the warrant being manifestly erroneous and, as such, is invalid as it is not a warrant “for the arrest of a person accused or convicted of an offence against the law of New Zealand”.

46    The applicant further submits that the March 2019 warrant is defective in two additional respects:

(1)    First, the March 2019 warrant is issued pursuant to the wrong section of the New Zealand Criminal Procedure Act 2011. The heading of the warrant refers to s 121 whereas the applicable section is s 123 of the New Zealand Criminal Procedure Act 2011.

(2)    Second, the March 2019 warrant alleges that the applicant “on the 29th day of March 2019” … “was charged with” the offences set out in the schedule to the warrant. The applicant submits that this is erroneous as the applicant was not charged with those offences on 29 March 2019. That was the date on which Judge Crosbie withdrew the October 2015 warrant and issued a new warrant being the March 2019 warrant.

47    The applicant submits that as a result of the defects described above, the combined effect is that the Court should declare the March 2019 warrant invalid and that it is not an “indorsed New Zealand warrant” as defined in s 5 of the Act.

Respondent’s submissions

48    The respondent submits that the March 2019 warrant is a “New Zealand warrant” as defined by s 5 of the Act. In addition, s 34(1)(a)(i) operates on the historical fact of the decision by Magistrate Bazzani on 28 February 2020 to indorse the March 2019 warrant and that decision has not been the subject of any challenge or review by the applicant.

49    The respondent accepts that the March 2019 warrant contains the following defects:

(a)    The 9 charges identified with Code 9102 wrongly refer to s 143 of the NZ Tax Act rather than s 143A of the NZ Tax Act.

(b)    The heading of the March 2019 warrant refers to s 121 of the New Zealand Criminal Procedure Act 2011, whereas the applicable section is s 123 of the New Zealand Criminal Procedure Act 2011.

(c)    The March 2019 warrant wrongly states that the applicant “was charged with” offences on 29 March 2019 whereas, in fact, the applicant was charged on 22 September 2014.

50    The respondent submits that none of these (accepted) defects prevents the March 2019 warrant from being a “New Zealand warrant” as defined under s 5 of the Act.

51    The respondent rejects the applicant’s contention that the March 2019 warrant wrongly alleges that the applicant was charged with, and convicted of, offences against s 143A(1)(e) of the NZ Tax Act rather than s 143A(1)(d) of the NZ Tax Act. In the respondent’s submission, the warrant states for each of these offences “fails to make deductions/withhold of tax – NZ Tax Act – s 143A”. The March 2019 warrant, in the respondent’s submission, refers generally to s 143A and there is no requirement that the warrant must particularise the particular subsection within s 143. In any event, the respondent submits that the application to indorse the warrant before Magistrate Bazzani included not just the March 2019 warrant, but also the reasons for the verdict of Judge Kellar, which refer to the subsection under which the applicant was charged and convicted, namely, s 143A(1)(d) of the NZ Tax Act.

52    The respondent submits, notwithstanding the accepted defects in the March 2019 warrant, the warrant still satisfies the requirements of s 5 of the Act as the March 2019 warrant “purports to be issued by … a judge … of a court of New Zealand”. The March 2019 warrant is “for the arrest of a person accused or convicted of an offence against the law of New Zealand”. In these circumstances, the respondent submits that the March 2019 warrant satisfies the requirements of s 5 of the Act and is therefore a “New Zealand warrant”.

53    The respondent submits that it was no part of Magistrate Bazzani’s function under s 34 of the Act to rule on the validity of the arrest warrant issued by Judge Crosbie on 29 March 2019. Section 34(4) of the Act precludes a person in the applicant’s position adducing 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.

54    The respondent submits that Magistrate Bazzani had an accurate statement of the charges of which the applicant was convicted on 14 September 2015 before her, in the affidavit of Federal Agent James Dalton sworn on 13 February 2020 (Dalton affidavit); as well as the reasons for verdict of Judge Kellar, which identified accurately the charges of which the applicant had been convicted of.

55    The respondent submits that the Full Court in Heslehurst v Government of New Zealand [2001] FCA 202; 109 FCR 226 (Heslehurst FC) observed that a magistrate is entitled to have regard to information extraneous to a warrant, the correctness of which cannot be questioned, and which is available from a document or documents, the authority of which cannot reasonably be questioned: Heslehurst FC at [16].

56    The respondent submits that the Dalton affidavit answers the description of information extraneous to the warrant, the correctness of which cannot reasonably be questioned and is available from a document the authority of which cannot reasonably be questioned.

57    The respondent submits that the Dalton affidavit correctly set out the charges of which the applicant was convicted in the trial before Judge Kellar and, as a consequence, corrects any error in the March 2019 warrant.

58    The respondent submits that a separate reason for rejecting the applicant’s First Ground is that the decision to indorse the March 2019 warrant was made by Magistrate Bazzani on 28 February 2020, and the applicant has not challenged that decision. The respondent observes that in Heslehurst the appellant challenged both the s 28 indorsement, as well as the s 34 surrender decision: Heslehurst at [12].

59    The respondent submits that, properly construed, s 34(1)(a)(i) of the Act operates on the historical fact of indorsement by Magistrate Bazzani on 28 February 2020. The respondent submits that the preconditions in s 34 are, relevantly, that a person has been remanded after being arrested under an indorsed New Zealand warrant (s 34(1)(a)(i)) and a request has been made for proceedings to be conducted under s 34(1)(b).

60    The respondent submits that, as with Part II of the Act, Part III provides for a staged process, whereby decision-makers consider distinct issues. As with Part II of the Act, in Part III the administrative powers are considered in sequence, but a repository of power does not review the exercise of power by another repository earlier in the sequence: Direct of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 per Brennan CJ, Dawson and McHugh JJ at 538.

61    The respondent submits that it is no part of the magistrate’s function under s 34 of the Act to decide whether the March 2019 warrant should have been indorsed by Magistrate Bazzani on 28 February 2020. The respondent submits that validity of the March 2019 warrant is not properly the subject matter of the review under s 35 of the Act which is a de novo rehearing of the matters before the magistrate, namely whether there are grounds under s 34(2) of the Act for refusing to surrender the applicant to New Zealand.

consideration of first ground

62    I reject the applicant’s contention that, because of the admitted defects in the March 2019 warrant, the warrant is not a “New Zealand warrant” under s 55 of the Act. The March 2019 warrant is a “New Zealand warrant” as the warrant satisfies the requirements of s 5 to be a “New Zealand warrant”.

63    The first requirement to be a “New Zealand warrant” is that the warrant purports to be issued by a court, a judge, a magistrate or an officer of a court of New Zealand. This requirement was satisfied as is conceded by the applicant.

64    The second requirement to be a “New Zealand warrant” is that the March 2019 warrant is for the arrest of a person (the applicant) accused or convicted of an offence against the law of New Zealand. This requirement is satisfied as the applicant concedes that she was convicted of offences against the law of New Zealand. The applicant concedes that she was convicted of the 15 charges identified in the warrant by the Code 9375 under s 143B of the NZ Tax Act. The applicant, in addition, concedes she was convicted of 31 offences against s 143A(1)(d) of the NZ Tax Act.

65    These facts, which are admitted by the applicant, are sufficient to satisfy the requirements of s 5 of the Act and result in the March 2019 warrant being for the purposes of the Act a “New Zealand warrant”.

66    The applicant, in her submissions, also concedes that the March 2019 warrant was indorsed by a magistrate, namely, Magistrate Bazzani, in accordance with s 28 of the Act. I reject the applicant’s submission that the defects in the warrant, as identified by the applicant, render the March 2019 warrant invalid and prevent the March 2019 warrant being a New Zealand warrant as defined by s 5 of the Act. I accept the respondent’s submission that where, as in this case, the applicant has made a request under s 34(1)(b) of the Act for a proceeding to be conducted under that section, the issue is whether the applicant was arrested under an “indorsed New Zealand warrant” within the meaning of s 34(1)(a)(i) of the Act. I also accept the respondent’s submission that s 34(1)(a)(i) operates on the historical fact of the decision by Magistrate Bazzani on 28 February 2020 to indorse the March 2019 warrant which decision has not been challenged by the applicant.

67    It was no part of Magistrate Bourke’s function under s 34(1)(b) to rule on the validity of the March 2019 warrant which was issued by New Zealand District Court Judge M A Crosbie. Similarly, in conducting this rehearing pursuant to s 35 of the Act, it is no part of my task to rule on the validity of the March 2019 warrant. Any challenge to the validity of the March 2019 warrant is properly a matter for the New Zealand courts.

68    For the reasons given, the March 2019 warrant is a “New Zealand warrant” under s 5 of the Act which has been indorsed under s 28 of the Act by Magistrate Bazzani on 28 February 2020. I reject the applicant’s first ground of objection.

second ground

Applicant’s submissions

69    The applicant submits that the Court should, pursuant to s 35(2)(b) of the Act, quash the orders of Magistrate Bourke made on 30 August 2021 and release the applicant immediately. This relief is sought pursuant to s 34(2) of the Act on the basis that the applicant submits it would be unjust and oppressive to surrender the applicant to New Zealand in the circumstances of this case, where Judge Kellar decided to hear the trial in the applicant’s absence. The applicant submits that the Minute of Judge Kellar’s reasons for proceeding with the trial in the applicant’s absence, evidence error on the part of his Honour, the consequences of which render the extradition of the applicant to New Zealand unjust and oppressive. The applicant submits that, as a consequence of the trial proceeding in her absence, she has lost the right to a fair trial in New Zealand.

70    The applicant submits that Judge Kellar was wrong to commence the trial in the applicant’s absence. There were other options which were available to Judge Kellar including adjourning the trial for a short period of time and warning the applicant that the trial may proceed in her absence. Alternatively, Judge Kellar could have issued a warrant for the arrest of the applicant prior to trial. In the applicant’s submission, the last resort was to proceed with the trial in the applicant’s absence.

71    The applicant submits that the Minute of Judge Kellar’s reasons for proceeding with the trial in the applicant’s absence, disclose an error which render the extradition of the applicant to New Zealand unjust and oppressive. In particular, the applicant submits that Judge Kellar was wrong to state “Ms Kelly either herself or through her counsel has not judicated any matters that are in dispute” at [10] of the Minute of Judge Kellar’s reasons. The applicant submits that she was entitled to remain silent and not required to indicate the matters that were in dispute. The applicant had denied all charges and required the prosecution to prove each charge beyond reasonable doubt.

72    The applicant submits that Judge Kellar’s reasons, as disclosed in the Minute, evidence error which render the extradition of the applicant to New Zealand unjust and oppressive.

73    The applicant also submits that it is inconceivable that the applicant had a fair trial in circumstances where Judge Kellar heard evidence from 10 witnesses who produced hundreds of documents and delivered an oral judgment on 14 September 2015, convicting the applicant of all 46 offences in less than one sitting day.

74    The applicant submits that if she is surrendered to New Zealand, she will not face a fair hearing as she would return before Judge Kellar who conducted the trial in the applicant’s absence in a manner, which the applicant contends, was manifestly unjust.

75    The applicant submits that whilst she may apply under s 125 of the New Zealand Criminal Procedure Act 2011 for a retrial of the charges which she was found guilty of in her absence, there is no guarantee that she would get a retrial. Any such application for retrial requires the applicant to file an outline of defence on which the applicant intends to rely if a retrial is granted, and a formal statement from each witness who the applicant (or the “defendant” in such a proceeding) intends to call: s 125(3) New Zealand Criminal Procedure Act 2011. The applicant submits that these requirements mean that the applicant would have lost her right to remain silent and would bear the onus of establishing that she has a reasonable defence before she might have a retrial.

76    The applicant submits that the decision by Judge Kellar to proceed with the trial in the applicant’s absence was manifestly unjust, and renders the extradition of the applicant to New Zealand unjust and oppressive under s 34(2) of the Act.

Respondent’s submissions

77    The respondent submits that there is no “injustice” of a kind that would attract the operation of s 34(2) of the Act. The respondent submits that any injustice would not be “because of” her surrender to New Zealand, but is caused by the applicant’s own conduct in failing to appear at the trial before Judge Kellar.

78    The respondent submits that s 34(2) of the Act must be understood in the light of the confidence in the integrity of the New Zealand criminal justice system. A finding of injustice in the New Zealand criminal system would not be made lightly: Moloney at [35]-[37].

79    The respondent submits that the expression “unjust” in s 34(2) of the Act is directed primarily to the risk of prejudice to the person in the conduct of the trial, and “oppressive” is directed to hardship to the accused resulting from changes in the person’s circumstances: Moloney at [66] and New Zealand v Templeton [2017] FCA 745 (Templeton) per Rangiah J at [69].

80    The respondent submits that what is “unjust” for the purposes of s 34(2) of the Act is a value judgment, judged according to Australian standards: Bannister v New Zealand (1999) 86 FCR 417 per the Court at [26]; Newman v New Zealand (2012) 206 FCR 1 per the Court at [24].

81    The respondent submits that the fact that the applicant was convicted of 46 charges in her absence at the trial before Judge Kellar, does not demonstrate injustice for the purposes of s 34(2) of the Act. That is so, in the respondent’s submission, because s 121 of the New Zealand Criminal Procedure Act 2011 expressly contemplates that a trial of category three offences may be heard in the defendant’s absence if the court is not satisfied that the defendant had a reasonable excuse for non-attendance. The court may proceed with the trial in the absence of the defendant and/or issue a warrant to arrest the defendant to be brought before the court.

82    The respondent submits that the presence of s 10(1) in the Act, which deals with the position of a person having been convicted in their absence of a law of an extradition country, such as New Zealand, means that the trial and conviction in absentia, by itself, cannot amount to a reason which would make extradition unjust or oppressive for the purposes of s 34(2) of the Act. The respondent submits that the bare fact that the applicant has been convicted in her absence does not demonstrate injustice: Minister for Justice v Adamas (2013) 253 CLR 43 per the Court at [37]-[38].

83    The respondent submits that the applicant’s circumstances do not suggest any injustice. The respondent submits that the applicant was on notice that if she failed to appear at the trial then there was a possibility that the trial would proceed in her absence. The respondent submits that the applicant acknowledged this at a bail hearing.

84    The respondent submits that there is no injustice in the applicant being surrendered to New Zealand as she may apply for a retrial under s 125 of the New Zealand Criminal Procedure Act 2011. The New Zealand court may grant a retrial where the requirements of s 125(7) are satisfied. That subsection provides:

(7)    The court may order a retrial of the charge if-

(a)    the court is satisfied that-

(i)    the defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the court at the time of the trial; and

(ii)    it is in the interests of justice; or

(b)    regardless of whether the defendant had a reasonable excuse for non-attendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.

85    The respondent submits that there would be no injustice to the applicant in being surrendered to New Zealand and applying for a retrial. The respondent submits that a person applying for a retrial does not have to disclose his or her defence if he or she has a reasonable excuse for not attending the original trial that was not known to the trial judge: s 125(3) and s 7(a) of New Zealand Criminal Procedure Act 2011. The respondent submits that if the applicant, on an application for a retrial, was required to disclose her defence then it is only because her reason for non-attendance was rejected by the trial judge, Judge Kellar, who positively concluded that it was in the interests of justice to proceed in the applicant’s absence.

86    The respondent submits that there is nothing about the circumstances of the trial before Judge Kellar which suggests any relevant injustice under s 34(2) of the Act. The respondent submits that Judge Kellar had the power to try the applicant in her absence under s 121 of the New Zealand Criminal Procedure Act 2011 if satisfied that it was in the interests of justice to do so. The relevant factors in making that assessment included any information on the reasons for the defendant’s absence, and the nature and seriousness of the offence: s 121(3)(a) and (d). The respondent submits that Judge Kellar considered these factors, and gave cogent reasons for rejecting the applicant’s proffered explanation. The respondent submits that the decision of Judge Kellar to proceed in the applicant’s absence was reasonable in all the circumstances.

87    The respondent submits that it is not sufficient for the applicant to assert injustice generally, rather, the applicant must establish a connection between any injustice and surrender to New Zealand. The respondent relies upon the observations of Rangiah J in Templeton at [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. (Emphasis added.)

88    The respondent submits that there is no connection between any injustice and surrender to New Zealand. The respondent submits that any disadvantage or injustice would not be a result of the surrender of the applicant but as a result of the applicant’s own conduct in:

(1)    failing to attend her trial;

(2)    failing to provide the District Court of Dunedin with evidence substantiating her claimed mental health issues;

(3)    failing to instruct a lawyer to apply for a rehearing, or to otherwise appeal or overturn the decision to proceed in absentia;

(4)    failing to return to New Zealand to deal with the matter;

(5)    failing to contact the District Court of Dunedin or the prosecution at any point between 2015 and 2021.

consideration of second ground

89    The surrender of the applicant to New Zealand will not be unjust or oppressive under s 34(2) of the Act for the reasons that follow.

90    There is an assumption that judicial process in New Zealand is fair and just and that if an Australian court surrenders a person to New Zealand for a trial or some other legal process that process will be fair. This explains the special arrangements which exist that govern extradition from Australia to New Zealand under Part III of the Act and the respect and high regard in which the New Zealand courts are held in Australia which supports an assumption of fairness. Section 34(2) must be understood in light of that assumption: Moloney at [36] and [37].

91    A finding of injustice under s 34(2) of the Act is not made lightly: Moloney at [35].

92    I reject the applicant’s submission that the manner in which Judge Kellar exercised his discretion and determined to proceed with the trial in the absence of the applicant is a proper basis for finding that the surrender of the applicant to New Zealand would be unjust or oppressive under s 34(2) of the Act. It is not part of my function in conducting the rehearing under s 35 of the Act to conduct a judicial review of Judge Kellar’s decision to proceed with the trial in the applicant’s absence. Any challenge to Judge Kellar’s decision to proceed with the trial in the absence of the applicant is a matter which should be dealt with through the New Zealand judicial system.

93    Section 121 of the New Zealand Criminal Procedure Act 2011 provides that, where a defendant such as the applicant is charged with a category three offence, and a not guilty plea has been entered to the offence charged and the prosecutor attends the hearing, but the defendant does not, the court may proceed in the absence of the defendant if the court is satisfied that it is in the interests of justice to do so. Judge Kellar in his Minute of reasons for proceeding with the trial in the absence of the applicant dated 14 September 2014, referred to the requirements of s 121 and was satisfied that it was in the interests of justice to proceed with the applicant’s trial in her absence.

94    The fact that the applicant’s trial was conducted by Judge Kellar in her absence does not demonstrate injustice or oppression under s 34(2) of the Act.

95    I do not accept the applicant’s submission that the manner in which Judge Kellar conducted the trial in the applicant’s absence was manifestly unjust, such that surrender of the applicant to New Zealand would be unjust or oppressive under s 34(2) of the Act. The applicant, if surrendered to New Zealand, may, through the New Zealand courts, apply for a retrial under s 125 of the New Zealand Criminal Procedure Act 2011. The assumption which I must make is that any such application for retrial would be fair.

96    I am not satisfied that the applicant has established “any other reason” why surrender of the applicant to New Zealand would be unjust or oppressive for the purposes of s 34(2) of the Act. The position which the applicant now finds herself in, was not as a consequence of the conduct of Judge Kellar in proceeding with the trial in the applicant’s absence, and the subsequent manner in which Judge Kellar conducted the trial, but was caused by the applicant’s own conduct in failing to attend her trial or otherwise take steps to seek an adjournment of the trial: Templeton at [64].

97    For the reasons given, I reject the applicant’s second ground of objection.

disposition

98    The application is dismissed. The applicant will pay the respondent’s costs to be assessed by a Registrar of this Court on a lump sum basis if not agreed.

Associate:

Dated:    19 November 2021