FEDERAL COURT OF AUSTRALIA

Kelly v New Zealand [2022] FCA 158

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 17 December 2021 be dismissed.

2.    There 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

MORTIMER J:

1    The appellant applies for bail pending the hearing and determination of an appeal against orders made by Anderson J of this Court on 19 November 2021: see Kelly v New Zealand [2021] FCA 1434. That proceeding was heard and determined under s 35 of the Extradition Act 1988 (Cth), being a review of the decision of a Magistrate under s 34 of the Act that the appellant be surrendered to New Zealand. The background facts are set out in Anderson J’s reasons at [2]-[27] and need not be repeated here.

2    The appellant filed her interlocutory application for bail on 17 December 2021. She also sought a stay of Anderson J’s order that she pay the costs of the review proceeding. However, no written or oral submissions were made in support of the stay application, and therefore this application for relief can be dismissed without adjudication on its merits.

3    The time at which the interlocutory application was filed and the absence of any responsive communications to the Court on behalf of the appellant until 14 January 2022, as well as the parties’ availabilities, meant that the hearing did not occur until 10 February 2021. I do not say that critically, given the appellant’s circumstances, but rather to indicate the Court was ready and willing to hear the application at an earlier point in time, in accordance with the request for expedition.

4    The hearing of the bail application was conducted remotely due to COVID-19 restrictions. The appellant was able to participate in the hearing from the Dame Phyllis Frost Centre, where she is detained.

THE EVIDENCE RELIED UPON

5    In addition to her own affidavit (which I discuss at [7]-[9] below), the appellant read and relied on the affidavit of her solicitor Joel Kent McComber dated 9 February 2022.

6    In his affidavit, Mr McComber provided a summary of the difficulties he and the appellant’s other legal representatives have had in communicating with the appellant while she has been incarcerated, annexing a number of communications with the DPF Centre in support of this. These difficulties included not being able to call the appellant directly (without at least 24 hours’ notice), calls being limited to 90 minutes’ duration, the appellant only being able to call him from public areas for a maximum duration of 20 minutes, and the appellant being restricted to receiving written documents of only six pages or shorter in length. Mr McComber also described how, because of the appellant’s legal training and experience as a barrister, she sought to be more involved in the preparation of her case than most of his other clients would tend to do. In the affidavit, Mr McComber deposes to his “true belief that the [appellant’s] continued detention will prevent her from fully and effectively participating in the preparation of her appeal”.

7    The appellant’s own affidavit was detailed, and went through the narrative of what has happened to her, from her perspective. She sought to explain matters said by the respondent to be adverse to her bail application. She also set out what she deposed to be the special circumstances warranting the grant of bail to her, which centred on her account of the conditions in which she is held, the increased exposure to lockdowns and other restrictions on the entitlements of prisoners because of the COVID-19 pandemic, allegations of delayed and inadequate access to health care, and difficulties contacting her family in Victoria and her elderly mother in Queensland. She describes her position as “unique”, because for all the additional restrictions due to the pandemic she will not receive any credit under the Emergency Management Day scheme otherwise applicable to Victorian prisoners. She also deposes to the impact of the conditions of her custody, and (I understand) the fact of her custody, on her ability to give proper instructions for the conduct of her appeal, and to have adequate access to her legal representatives. Included in this was evidence about her inability to attend her hearings in the Magistrates’ Court. The appellant also describes her family situation, and what she describes as her “[o]bligations to veteran clients” for whom she deposes she has been acting “for the most part pro bono” in relation to entitlements under federal legislation and also in relation to the Royal Commission into Veteran Suicide.

8    The respondent objected to some parts of the appellant’s own affidavit on the basis it was is argumentative in nature, and therefore not admissible. The respondent provided a table at the end of its submissions indicating to which paragraphs it objected. The respondent is correct in its characterisation of those parts of the appellant’s affidavit. They are not admissible as evidence, but as I indicated to the parties at the hearing, I take account of them as forming part of the appellant’s submissions. The appellant is a qualified lawyer, and has practised as a barrister for a long period of time, both in Australia and in New Zealand. On her own evidence, she has had a successful career. I accept it is difficult for her, in the circumstances in which she finds herself, to refrain from making points she feels should be made. Her liberty is at stake, and in those circumstances I see no prejudice to the respondent, nor anything impermissible, in the Court treating what is in those paragraphs as submissions in addition to those formal submissions made in writing and orally on her behalf by her counsel. Senior counsel for the respondent did not object to this course.

9    The appellant then deposes to matters that she contends mean she does not pose a real risk of flight. She seeks to contradict some of the matters relied on by the respondent, addresses why she changed her name, deposes to being unaware of the sentencing date in New Zealand, and describes the involvement of some of her family in her trial and sentence while asserting she did not ask them to be involved. She also gives her own narrative of how and why she came to Australia after she was charged in New Zealand, and why she did not return to New Zealand for her trial.

10    The respondent read and relied upon the following affidavits:

(a)    three affidavits of the respondent’s solicitor Melissa Catsanos:

(i)    an affidavit dated 19 January 2022, which annexed the transcripts of the proceedings before a Magistrate on 25 and 30 June 2021 in New Zealand Police v Raelene Marie Kelly (reference number M11268870);

(ii)    a second affidavit of Ms Catsanos dated 31 January 2022, which annexed transcripts from the previous extradition bail hearings before a Magistrate, on 21 and 23 June 2021, and then again on 28 July 2021 and 4 August 2021. This second affidavit also annexed the worksheet of Mr Kevin Nott, who was the process server who served court documents on the appellant on 6 September 2018; and

(iii)    a third affidavit of Ms Catsanos dated 8 February 2022, which annexed communications between Ms Catsanos and the appellant, and between Ms Catsanos and former and current employees of the Inland Revenue Department of New Zealand (NZ IRD);

(b)    an affidavit of Department of Justice and Community Safety Assistant Commissioner (Sentence Management Division, Corrections Victoria) Jennifer Ann Hosking dated 9 February 2022, in which the deponent provided a summary of the situation of prisoners in the DPF Centre. It was apparent from cross-examination, and unsurprising given Ms Hosking’s senior position, that most of her evidence, including her account of the appellant’s conditions and activities whilst at the DPF Centre, was significantly reliant on information provided to her by other staff at the DPF Centre; and

(c)    an affidavit of Australian Federal Police Constable Jarryd Alexander Purser dated 20 February 2022. In that affidavit, Constable Purser described his investigations to locate the appellant since joining that investigation on 8 April 2021. The affidavit annexed a number of documents pertaining to Constable Purser’s enquiries, including the results of a telecommunications search request and communications with real estate agencies.

11    The parties also filed written submissions ahead of the hearing, and were granted leave to file further written submissions after the hearing. Without leave, the appellant’s legal representatives filed a reply submission. Since no leave was granted, on one view those submissions should not be considered at all. However, given the appellant’s liberty is at stake, I have read them and taken them into account in forming my conclusions, as I have all the other written and oral submissions.

LEGAL PRINCIPLES

12    The parties were broadly in agreement that the applicable legal principles are to be found in the reasons for judgment of the High Court in United Mexican States v Cabal [2001] HCA 60; 209 CLR 165. They differed somewhat in their emphasis on certain passages in those reasons.

13    The parties agreed the Court in Cabal held that the grant of bail under the Act focused on the satisfaction of two distinct conditions, or involved two primary criteria, both of which must be satisfied. As I explain below, both parties also accepted that in considering whether to grant bail, the Court should consider the prospects of success in the substantive proceeding (here, the appeal). The parties differed in how they developed this consideration on the law, and on the facts.

14    Returning to the two agreed principal aspects of the assessment, there must be “special circumstances” justifying the grant of bail. The concept of “special circumstances” in an extradition context connotes something different, and greater, than the circumstances (including hardship) that might ordinarily be experienced by a person in prison facing extradition. In that sense, the circumstances must be “extraordinary”: Cabal at [52], [61].

15    Second, if there are special circumstances, all other relevant circumstances must be considered, including (and prominently) whether there is a “real risk” of flight. That is to be assessed if, and only if, special circumstances are proven. The acceptable risk threshold is very low: Cabal at [70].

16    In Tsvetnenko v United States of America [2019] FCAFC 74; 269 FCR 225 at [14] the Full Court described the approach in this way:

So, there must be special circumstances. If so, then the risk of flight is to be considered together with all matters relevant to the exercise of a general discretion whether to grant bail. In the exercise of that general discretion, if there is a real risk of flight then the statutory discretion should be exercised by refusing bail (save for the extraordinary case). It is in that sense that the requirement that there be no real risk of flight becomes a second condition that should be fulfilled before bail is granted to a person arrested under an extradition arrest warrant.

17    I also accept, as the respondent submitted, that in Cabal at [74] the Court explained why the grant of bail becomes more difficult as a person progresses through the stages prescribed in the Act:

As the case proceeds through the legal system, the chance of obtaining bail reduces, despite the existence of special circumstances. As the case against the defendant is confirmed at each step in the judicial hierarchy, the public interest in extraditing the defendant weighs more heavily against him or her.

18    In other words, the case in favour of extradition becomes stronger, and the Court must be mindful that Australia’s obligation under the Act, and the accompanying treaties, is to ensure that a person is available for extradition to the requesting state when the time comes: see, generally, Cabal at [58]. Despite the existence of a particular statutory regime with New Zealand, there is no suggestion this consideration is inapplicable.

19    At [61]-[62], the Court in Cabal emphasises that the “history and character” of a bail applicant are “surer guides” to the risk of flight than bail conditions, because (at [61]):

A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions.

20    At [72], referring to a decision of this Court in Holt v Hogan (No 1) (1993) 44 FCR 572 at 579, the Court emphasises it is wrong to approach a bail application with any “predisposition against unnecessary or arbitrary detention in custody”. Describing as “unpalatable” the conclusion that the Act makes it plain bail is not to be granted unless there are special circumstances, the Court states (at [72]):

the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases.

21    Drawing the two conditions together, the Court in Cabal described the correct approach in this way at [74]:

Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight. If a real risk of flight exists, the proper exercise of the discretion will ordinarily require the refusal of bail. Conversely, if special circumstances are proved and there is no real risk of flight, bail may be granted unless the defendant may be a danger to the community or some specific individual. In determining whether bail will be granted, one of the most important factors will be the stage which the proceedings have reached. As the case proceeds through the legal system, the chance of obtaining bail reduces, despite the existence of special circumstances. As the case against the defendant is confirmed at each step in the judicial hierarchy, the public interest in extraditing the defendant weighs more heavily against him or her.

(Emphasis added.)

22    This passage makes it clear the Court must examine all the circumstances of the case, on the evidence, and not confine itself only to the two principal conditions. I have taken that approach.

THE PARTIES’ ARGUMENTS IN SUMMARY

Onus

23    The parties agreed that it is the party seeking to resist extradition (in this case the appellant) who bears the onus of proving special circumstances. But the appellant submitted that the onus of proving a real risk of flight falls on the party seeking to enforce extradition (in this case the respondent).

24    The appellant drew an analogy to Victorian decisions under the Bail Act 1977 (Vic) (Victorian Bail Act), as considered by the Victorian Court of Appeal in Robinson v The Queen [2015] VSCA 161; 47 VR 226. The Victorian Bail Act, as amended and in force at the time, set out a two-step ‘exceptional circumstance’ and ‘unacceptable risk’ test for bail for certain criminal cases. The appellant cited Robinson at [43]-[45] as authority that, once an applicant for bail has discharged their onus as to exceptional circumstances, the onus for unacceptable risk then reverts to the respondent.

25    The respondent submitted Robinson was inapplicable, because the High Court had addressed this question in Cabal. Senior Counsel relied on [80] of the Court’s reasons in Cabal.

26    The respondent also pointed to Cabal at [63]-[65] as authority for the proposition that “[t]he Act creates a presumption against the grant of bail, because there is a presumption that the defendant will flee the jurisdiction” (original emphasis).

Special circumstances

27    The appellant relied on the following broad topics as constituting special circumstances, arguing that the Court should consider them in aggregate and “whether their summation gives them a character that each lack when viewed individually” (quoting Tsvetnenko at [16]):

(a)    denial of the appellant’s statutory rights;

(b)    personal impact of detention upon the appellant; and

(c)    adverse impact on the appellant’s ability to prepare for proceedings.

28    In subsequent written submissions, the appellant developed a further argument that had been foreshadowed at the hearing; namely, that the New Zealand warrant indorsed under s 28 of the Act, and forming the basis of the respondent’s extradition request, was “wholly defective”. The appellant’s counsel contended this argument could not only be considered as enhancing the prospects of the appellant succeeding on the appeal, but could also be considered a special circumstance.

29    The respondent submitted that the matters relied upon by the appellant do not, alone or in combination, amount to “special circumstances” justifying the grant of bail. A common theme throughout the respondent’s submissions on this matter was that the circumstances of the appellant were not unique to her; rather, those circumstances were common to all extradition prisoners in her position, and also common to all prisoners held in the DPF Centre.

Risk of flight

30    The appellant’s counsel submitted that the appellant poses no “real risk of flight”. He submitted the appellant:

(a)    is a 62 year old Australian citizen and has never held New Zealand citizenship or a New Zealand passport;

(b)    voluntarily surrendered her only passport;

(c)    has close ties with Australia, with relatives in Victoria and Queensland, Australian work ties and no other ties except to New Zealand (where she has a sister);

(d)    is correctly registered on the electoral roll;

(e)    has lawfully registered a change of name; and

(f)    is in deteriorating health.

31    Counsel submitted that the appellant had never sought to hide from the New Zealand authorities, and that their efforts to find her had been inadequate and haphazard. Counsel also submitted that on certain matters where there was conflicting evidence (such as whether the appellant had been personally served in 2018 with records of her conviction), the respondent’s evidence should not be accepted and the appellant’s denials should be believed.

32    In her affidavit, the appellant deposed that she was prepared to submit to electronic surveillance as a condition of her bail. Counsel submitted that this indicated an intention to “remain in Australia to participate in the extradition process and abide its outcome” (quoting Dowsett J in New Zealand v Templeton [2017] FCA 804 at [11]).

33    The respondent emphasised the appellant’s failure to attend her trial and inadequate (and, it submitted, false) explanations from the appellant for not answering her bail and attending her trial.

34    Before her arrest in Australia under the Act, the respondent alleged the chronology of events demonstrated that the appellant took measures that made it difficult for the New Zealand authorities to locate her within Australia, including that she:

(a)    in relation to her address:

(i)    moved interstate several times since returning to Australia, yet only provided the New Zealand court with an initial address in Victoria, although she left that address after a brief period of time; and

(ii)    never resided at an address leased or owned in her own name (including residing at a property in Victoria leased in the name of her brother), over a period of six years;

(b)    used at least since October 2015 a mobile phone subscribed in the name of another person;

(c)    changed her first, middle and last name in December 2018;

(d)    did not hold a driver’s licence since her return; and

(e)    did not apply for an Australian practising certificate, despite having worked as a barrister for over 20 years.

RESOLUTION

35    The Court’s reasons in Cabal indicate that a person subject to the extradition process has a very high bar to surmount in order to secure bail. That is especially so later in the extradition process. The Court’s reasons in Cabal, and the evidence of the individuals’ circumstances in that case, demonstrate that even relatively extreme prison conditions are not sufficient to produce special circumstances, and that the context of the custody of a person during an extradition process gives rise to unique considerations that tend against the grant of bail.

36    The appellant has been incarcerated through an extremely challenging period of time in Victoria, because of the COVID-19 pandemic. The evidence of both the appellant and Ms Hosking makes it clear that Victorian prisoners have had to deal with a number of additional and significant hardships over and above those of the general community. The Court recognises that has meant the appellant has found her incarceration even more difficult than it might otherwise have been.

Onus

37    I accept the submission of the respondent on this matter. The appellant bears the onus of proving both that there are special circumstances justifying bail and that she does not pose a real risk of flight. That is apparent from Cabal at [62] and [80]:

Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight.

….

In our opinion, Mr Cabal failed to establish that, if he was released on bail, there was no real risk that he would flee from Australia.

(Emphasis added.)

38    The appellant must also prove that the appeal has sufficient prospects of success to justify the grant of bail in what is otherwise, I accept, a circumstance where Australian law identifies strong factors tending against a person being at liberty during the extradition process.

Special circumstances

39    The need for special circumstances is the only express statutory precondition to the power to grant bail pending an appeal to the Full Court under s 35(3): see s 35(6)(g)(iv).

40    Taken cumulatively, the evidence does not satisfy me that there are special circumstances justifying the grant of bail to the appellant. Nor is there any single factor that I consider constitutes special circumstances for the purpose of s 35(6)(g)(iv).

41    While it may well be the case in some situations that a number of factors, when added together, take a person’s situation well outside what is experienced by other extradition prisoners, the factors relied on by the appellant on this application are not of that order. Their cumulative effect is the kind of cumulative effect experienced by any extradition prisoner held in a Victorian prison. To say as much is not to diminish the undoubtedly difficult and adverse conditions and experiences to which the appellant has deposed. Rather, it is to recognise that she is experiencing those difficult and adverse conditions in the same substantive circumstances as would any other person in extradition custody in Victoria, and in the same substantive circumstances as other female prisoners held in the DPF Centre.

42    As to the factors relied upon, my findings are as follows.

Denial of the appellant’s statutory rights

43    The appellant submitted that s 53 of the Act requires persons remanded under the Act to be subject to the relevant State laws governing custodial conditions. On the appellant’s submission, the relevant provision of the State law is s 47(1) of the Corrections Act 1986 (Vic). That provision sets out prisoners’ rights to access open air, to adequate (and, for certain prisoners, personal) clothing, to access reasonable medical and dental care, to receive at least one visit of at least one half hour per week, and (subject to certain limitations) to send and receive letters and parcels, including from a lawyer.

44    The appellant contended that the manner of her detention breached her rights listed in s 47(1). The appellant’s counsel pointed particularly to:

(a)    suspension of in-person visits for almost the entire period of remand;

(b)    restricted access to time-limited, monitored calls (which, they submitted, were often disrupted or cancelled due to sudden lockdowns);

(c)    extensive periods and number of in-cell lockdowns, without access to open air or phone calls with family members or legal advisers;

(d)    denial of access to the appellant’s own clothes, or to receive suitable clothing from family members;

(e)    delayed, inadequate or non-existent appropriate health and dental care; and

(f)    restrictions on, and interruptions to, privileged correspondence.

45    The difficulty with this factor is the one identified by the respondent. The appellant has endured a significant number of restrictions on “ordinary” prison conditions and entitlements during her incarceration. However, the evidence was clear that this burden had not fallen disproportionately or particularly on the appellant, but on all prisoners in Victorian prisons, and most relevantly on all those women incarcerated in the DPF Centre. Any other person in extradition custody would have had to endure similar conditions. The fact (assuming in the appellant’s favour that it is a fact) that the appellant may be the only female prisoner in extradition custody at the DPF Centre does not preclude the appropriate comparison of whether she has been treated, or exposed to, any greater and more burdensome conditions and treatment than any other female extradition prisoner would have been exposed to. There is no evidence to support such a conclusion. And if the appropriate comparator is other prisoners in the DPF Centre, the conclusion is the same.

46    Much time was spent during the oral hearing on the competing evidence about how many hours and days the appellant was locked down, how much time she did or did not get to spend outside, how restricted she was in how many phone calls she could make and to whom; how many days were spent without contact with family. While there were substantive differences between the appellant’s evidence and that of Ms Hosking, I am prepared to assume in favour of the appellant that her evidence is likely to be more accurate.

47    The appellant is an intelligent and well-educated person. She understands the concept of legal rights, and her entitlements to such rights. She understands legal processes, and, I find, she has come to be familiar with and understand the administrative and correctional processes applying in the DPF Centre. She has worked in a profession renowned for attention to detail. She has been incarcerated in the DPF Centre in circumstances where I find she is likely to have paid close attention to any departures from her entitlements, and I find she has been astute to inform herself about those entitlements. That is not said critically; rather it is consistent with her legal training and the predicament in which she finds herself. She has directly experienced the additional restrictions, and the burdens they have brought. She has lived them. They are recent and indeed ongoing experiences for her – there is no need to assess how reliable she is as a historian (cf [75] below). In my opinion her evidence is more likely to be accurate than the indirect evidence given by Ms Hosking.

48    Ms Hosking was, I find, a witness who strove to assist the Court, and to be honest about what she knew and what she did not know. Her evidence was that she couldn’t recall when she was last at the DPF Centre, but it was not this year. The way she gave these answers suggested to me it was some time since Ms Hosking had visited the DPF Centre. She relies on others to report to her about conditions. By the time information reaches her it may be third or fourth hand. It may be given by persons who have an interest in not exposing any deficiencies in prisoner conditions because their employment might be adversely affected or they might be subject to criticism. The “on the ground” conditions experienced by prisoners, hour by hour, day by day, are incapable of being reflected in statistics. While Ms Hosking no doubt trusts those who provide her with information, I find it is likely even those who have supplied her with information are somewhat removed from what is happening in the units within the DPF Centre.

49    Thus, although I accept the appellant’s evidence in broad compass, I do not accept these matters constitute "special circumstances". They are circumstances being experienced by Victorian prisoners in general.

Personal impact on the appellant

50    Counsel for the appellant pointed to the personal impacts of detention on the appellant. In particular, counsel focused on the limited visits by the appellant’s family, and the appellant’s inability to speak to her aging mother. Counsel also relied on the appellant’s evidence to point to her ongoing and worsening health issues, including reoccurring ear infections, back and hip disorders (which they said were exacerbating the appellant’s pre-existing sleep disorder) and lack of access to dental care.

51    Again, the respondent reiterated in response its argument that these difficulties are common to all persons in custody, and are not unique to the appellant. Specifically in relation to the appellant’s mother, the respondent submitted that prior to being taken into custody, contact between the appellant and her mother must in any case have been limited (or by technological means) because the appellant resided in Victoria and her mother resided in Queensland.

52    I accept the respondent’s submissions. These matters fall into the same category as the ones I have discussed above. I do not doubt the appellant is distressed, and is uncomfortable, and (it would seem) in pain from time to time because of some of her health issues. However, Ms Hosking’s evidence demonstrates the appellant has reasonable access to health professionals, in the way that other prisoners do, and has made use of them. The appellant sought to contextualise the information provided to Ms Hosking about the number of medical appointments by pointing out that some such ‘appointments’ were in reality only requests or provisional appointments, in which case she did not see a medical professional as such. I accept that may have been the case. I accept, as the appellant put it, that the theory and policy within a prison such as the DPF Centre about prisoner access to health care may at times depart from the practice. Again, if that does occur, that is a detriment experienced by all prisoners, as some of the appellant’s anecdotes in her own evidence demonstrated. The appellant did not adduce any specific medical evidence about her health conditions and the alleged lack of treatment or accommodation for them in the DPF Centre, so there is no specific evidence for the Court to consider. Reliance on matters likely to be common to many women prisoners in the DPF Centre is insufficient to constitute special circumstances of the kind the High Court in Cabal required to exist.

Adverse impact on ability to prepare for proceedings

53    The appellant submitted that the conditions of her detention meant she was given no opportunity to locate, receive or collate documents that would assist in preparation for her upcoming appeal hearing.

54    The appellant also submitted that her capacity to instruct her lawyers was significantly impeded due to what the appellant’s lawyers termed “communication embargoes” and disruptions and restrictions. Mr McComber’s evidence also went to this issue. Examples of these given by the appellant included time-limited, interrupted and/or cancelled telephone or video calls, refusals by the DPF Centre authorities to print certain documents for the appellant, delays by the DPF Centre authorities in delivering privileged communications to the appellant, failure by the DPF Centre authorities to transport the appellant to court, an incompatibility of the DPF Centre’s teleconferencing systems meaning the appellant on some occasions had not been able to see or hear proceedings (or communicate with her lawyers), and a lack of access to adequate legal and electronic resources.

55    The respondent accepted at a general level that there are often challenges in preparing for proceedings while in custody. However, it submitted these challenges do not amount to special circumstances. It submitted the appellant has exaggerated her difficulties in preparing her case, and in the proceedings below in particular, the appellant had on numerous occasions sent documents to, and received documents from, the respondent, and had contacted and instructed several different lawyers including her counsel in this case. The respondent also pointed to the more restricted nature of the appeal, compared to the proceedings below.

56    There can be no doubt that conducting litigation while in custody imposes a series of restrictions and burdens on an individual in terms of access to lawyers, and access to documents. The appellant is represented by solicitors and counsel on the appeal. She appears to have chosen solicitors and counsel who do not reside in Victoria, so that she is not able to have personal visits from them (assuming such visits might be permitted, or might in the future be permitted, under COVD-19 restrictions). This fact also may also make it more difficult for her solicitor to have documents delivered to her at the prison, but as Mr McComber conceded in cross-examination, delivery of that kind is possible but he has arranged for such delivery on only one occasion.

57    While I accept that as a qualified lawyer herself, and former practising barrister, the appellant is likely to want to be closely involved in the formulation of arguments on her behalf, and perhaps in forensic decision-making, she is not responsible for those matters; her legal representatives are. Prior to the hearing of her bail application, the appellant did appear to have some difficulties in receiving copies of her draft affidavit, and being able to finalise it in a timely fashion so as to comply with the Court’s orders. The Court was prepared to intervene to ensure that officers at the DPF Centre, and/or at Corrections Victoria, were not unreasonably impeding the appellant’s ability to comply with Court orders. Sometimes, ‘policies’ about access to documents, or printing out of documents, may need to applied more flexibly for an individual prisoner, depending on the circumstances. It is to be expected that the Court would intervene again if the need arose. These matters are not special circumstances justifying the grant of bail.

Other arguments

58    Counsel for the appellant also contended that, by mixing with maximum security prisoners at the DPF Centre, the appellant was subject to gender discrimination, since if she were a male in a male prison, she would only be with prisoners on remand. Ms Hosking denied there was a complete and uniform separation of remand and sentenced prisoners in male prisons, and I accept her evidence.

59     Counsel also sought to characterise the restrictions on prisoners in Victoria as unique in Australia, submitting that:

The Court should take judicial notice of Victoria's unique degree of lockdown. It appears that other prisons in Australia or even Victoria have not imposed similar restrictive measures on remandees as those imposed on [the appellant].

60    Again, Ms Hosking’s evidence contradicts this contention. I accept her evidence that the appellant has not experienced any greater burdens or disadvantages than other prisoners in Victoria, male or female, as a result of the COVID-19 pandemic. It can be accepted that Victorian prisoners may have suffered from much harsher lockdown conditions than prisoners in other parts of Australia because of the length and severity of Victorian precautions intended to avoid the spread of COVID-19. It can be accepted they have been unable to see family and friends in accordance with their usual entitlements. On the evidence, restrictions have begun to ease, but the additional harshness of prison conditions over the last two years can be recognised. There is no doubt that, at a human level, prisoners may have suffered considerably because of this, including the appellant. Again, since they are experiences shared across the Victorian prison population, they are not “special circumstances” for the purposes of what the High Court has made clear is the extraordinary outcome of release on bail of a person subject to extradition proceedings.

61    Further, while to the appellant a period of seven months is no doubt a lengthy period in custody, during this time the appellant has been through proceedings before a Magistrate and before the primary judge, with decisions in both delivered in an expedited time frame. Viewed objectively, in terms of the progress of complex matters through the Australian court system, to have reached this point in seven months is perhaps an even greater efficiency than might have been expected. No special circumstances arise from this period of detention in and of itself.

62    As I explain below, the prism though which the appellant’s contentions should be viewed is quite different to that applicable to a sentenced prisoner. The appellant could bring her custody to an end by electing to consent to surrender to New Zealand. She does not have to endure custody in Australia. Custody in New Zealand is likely to count towards any sentence, which it does not do here, as counsel for the appellant eventually conceded after hearing Ms Hosking’s evidence about Emergency Management Days. Of course, the appellant is entitled fully to defend the request for her extradition; the point to be made here, however, is that an election to do so is made in the full knowledge of the firm position in Australian law against persons subject to extradition being able to be at liberty while doing so.

“Wholly defective” warrant as a special circumstance

63    I do not discount the possibility that, in an appropriate case, an obvious and fundamental flaw in the documents relied on to support a request for extradition might be capable of constituting “special circumstances”. For example, if a person was able to adduce objectively strong evidence that they were not the person sought: ie mistaken identity. It is not impossible that such a profound flaw could be raised for the first time at the appellate stage, but it seems to me to be unlikely in reality to occur, because of the scrutiny that would have by this stage been applied by a Magistrate, and a Judge of this Court, to the foundational documents of the case. Therefore, I approach the appellant’s arguments on the basis, favourable to her, that such a situation is not precluded by the legislative scheme, nor by the concept of “special circumstances” as explained in Cabal. Such a situation would, of its nature, not be one shared by other extradition prisoners.

64    That said, I do not accept that an assessment by a court hearing a bail application that a person has strong prospects of success on a particular contention can be converted into a special circumstance. That is a situation different in character from the one I have just described. Rather, strong prospects in relation to an argument or contention are accorded significant weight in the assessment of “all the circumstances” of the bail application, as Cabal requires.

65    However, I explain below why, at least as a preliminary view (which is all I consider I should form on this application), the argument about defects in the indorsed New Zealand warrant does not have strong or good prospects of success. Even if I am wrong, this factor is not a special circumstance justifying the grant of bail to the appellant.

Conclusion on special circumstances

66    The appellant has not proven there are special circumstances justifying her release on bail. This is a necessary condition in s 35(6)(g)(iv) to the Court considering, as a matter of discretion, whether to grant bail.

67    Since she has not proven this matter, there is strictly no need to go on and make findings on whether, viewing the circumstances as a whole, the appellant should be granted bail in the exercise of the Court’s discretion. However, in deference to the submissions made and to the importance of this matter to the appellant, I shall explain why, even if I am wrong about special circumstances, I would not have been persuaded as a matter of discretion that the appellant should be released on bail.

68    Chief amongst my reasons is that I am satisfied the appellant presents a real risk of flight.

Risk of flight

69    I find on the evidence, considered cumulatively, the appellant does pose a real risk of flight, in the particular way the respondent characterised that risk: namely, a risk that she would attempt to avoid Australian authorities, make herself difficult to locate and contact, and not appear at her appeal. The fact that the appellant has surrendered her Australian passport, holds no other passports, and there is no evidence of any history of using false passports, satisfies me that there is no real risk she will seek to flee from Australia.

70     I interpolate here, that risk of flight is not necessarily confined to a completely successful escape from the authorities. It encompasses an attempt to avoid authorities, so that Australia’s ability to make the appellant available to New Zealand authorities in a timely fashion is placed in jeopardy, and additional resources and costs might be expended looking for her. Thus, the question is: is there a real risk the appellant will attempt to flee from the Australian (and New Zealand) authorities?

71    In terms of the level of risk, I am satisfied on the evidence that the appellant is in a somewhat different situation from the situation prior to her arrest. Her arrest forced her to confront what it appears on the evidence she has been running from, and not wishing to face up to, for six years – the allegations of serious criminal conduct against New Zealand law, and her conviction. I note the 2019 New Zealand arrest warrant lists her occupation as “Barrister”. The fact of her profession, and her long practice in it both in Australia and New Zealand, must make her current situation additionally challenging to come to terms with. There is evidence that this was how her own (two) sisters saw her attitude back in 2015 when, through their counsel, they sought to persuade the New Zealand sentencing Judge that they were:

urging the defendant to face up to her responsibilities in New Zealand and hope she will listen to reason.

72    In 2022, the appellant could not but be fully aware of the predicament her conduct since 2015 has placed her in. On her own evidence, she has recovered psychologically from the state she describes in September and October 2015. She did make a concession on her bail application to the Magistrate that she should have been in touch with the New Zealand authorities herself. I return to that concession below. However, I accept that, since she has been in custody, her insight into the seriousness of her predicament is likely to have increased, and with it, her appreciation that she should comply with and cooperate with the extradition process, and with the Australian and New Zealand authorities. Therefore, the risk of flight is, in my opinion, not high. But it is “real”. Past behaviour is capable of being a reasonable and probative predictor of future behaviour, and I am satisfied that in her six years since she left New Zealand, the appellant has actively sought to make it difficult for the New Zealand authorities (and also the Australian authorities) to track her down. In my opinion, she took steps to conceal herself. In her evidence to this Court, she has sought to paint her conduct in a different light, and offer explanations, which I have not found persuasive, but which I consider to be reconstructions, or only part of the truth. In that sense, I find she has not been frank about why she has lived her life over the last six years in the way she has, and that lack of frankness contributes to my assessment that there is a real, and not fanciful, risk she would attempt to conceal herself again if she were released on bail. It might be doubted she would succeed for long, but in my opinion there is a real risk she would try.

73    In terms of my approach to the appellant’s evidence, I find that she is a less reliable historian on matters relating to the time after she left New Zealand and up to her arrest. Listening to her oral evidence, I find her memory was not reliable, in the sense that she often answered that she did not know or could not remember, and that she “would have” done or said something. She speculated frequently rather than giving an account of what in fact occurred. There may be many explanations for this, including that she was in my opinion regularly reconstructing events to put her behaviour in a more favourable light. My firm impression is that the appellant well understands how poorly her conduct, and her previous representations to authorities, reflects on her, and how disadvantageous it is for her current application. She has an appreciation of forensic relevance, given her long career as a barrister.

74    Unlike her evidence of what is happening to her in the DPF Centre, I find her oral evidence at her bail hearing about her circumstances shortly before and after leaving New Zealand when she did not return for her trial, and her accounts of where she went and what she did for the last six years, are not matters about which she has as clear a recollection. I also find that, on those topics, she has sought to obscure some aspects of her previous conduct. She has also sought to downplay and diminish the seriousness of what occurred.

75    I did not find the appellant persuasive about how incapacitated she was in September 2015 onwards, while in Perth. I find that even by this point, she had been dishonest with the New Zealand authorities, including with the Judges presiding over her prosecution. An affidavit that she swore in May 2015 is in evidence and reveals the extent of her dissembling between when she swore that affidavit and the time of her arrest last year.

76    This is how the appellant described why she sought to have her then bail conditions varied so she could move to Australia:

The prosecutor had previously indicated a preference for me to remain in New Zealand until after the trial, but I strongly opposed that course. I had a longstanding (ie 3 year) commitment to move back to Australia after my daughter completed school at the end of 2014. I had sold my company in September 2013, ceased taking new clients from about then (with one pro bono exception), wound up existing matters as quickly as I could, closing my chambers in July 2014. My house went on the market in September 2014, and my daughter’s application to Melbourne University and her college there had all been formalized long before. [(]I was first advised of the intention to charge me upon my return from Melbourne University Open Day in August 2014.[)] Although he cited concerns about a previous matter (which had no connection to me whatever) in which a defendant failed to return from Australia to face trial, the prosecutor noted that any defendant failing to appear could be tried in their absence. I assured the prosecutor that I had absolutely no intention of allowing these charges to destroy my personal and professional life, which would be the inevitable result if I failed to appear. I explained that I am determined to defend the charges and am confident that I will succeed in that. Failure to appear, for me, if not for all defendants, was the worst outcome, and I would not bring that on myself in a fit.

(Emphasis added.)

77    The appellant was, in this affidavit, urging upon the Court that she should be released on her own undertaking. That she could be trusted. This is what she said to the Court:

I formally undertake to the Court that I will appear for trial on 14 September 2015, or at any other time when I am notified of a requirement to appear. As a barrister of 28 years standing, I understand the gravity of an undertaking to the Court and the consequences of failure to honour that undertaking. I am resolute in my determination to defend the charges, and hold the honest belief that I will be exonerated. To fail to appear would amount, in my opinion, to a concession that I was guilty as charged, and I most certainly do not make that concession. Rather, the charges are, in my opinion, misconceived, are based on factual errors, and do not accord with the prosecution’s own evidence, as disclosed under the criminal procedure rules.

I have far more to lose than a non-lawyer, by failing to appear. I apprehend that a trial would occur in my absence and the factual errors in the prosecution’s case may escape the Court’s attention: the risk is that without an active defence, I could be convicted. A failure to appear would mean spending the rest of my life

   a.    in hiding and on the run from authorities; and

b.    unable to practise, despite being at the peak of my professional career.

Given my opinion that I have a substantial probability of defeating the charges, that “option” is ludicrous. My only chance of putting this behind me is to defend the charges, and that is what I intend to do.

As advised to the Court already, I have since 27 February, engaged Mr Mike Lennard as Counsel for the trial. Mr Lennard has commenced preparation on my defence and I am planning to travel to Wellington to confer with him in the near future once he has received documents from the prosecutor.

I have some planned medical treatment which will require me to fly back to Dunedin at least once before the trial, but in any event would return to Dunedin in good time before the trial in September.

(Emphasis added.)

78    The appellant made these statements solemnly and sincerely, by affirmation. At this stage she was a legal practitioner of many years’ experience. The assertions in these passages are incompatible with her conduct once she left New Zealand. Either the appellant genuinely meant these statements when she made them, in which case her subsequent conduct has been dishonest and calculated to avoid responsibility for the charges and subsequent conviction against her; or she did not mean them when she made them, in which case her conduct then was dishonest and only designed to secure a passage to Australia and her freedom.

79    It is unclear on the evidence when the appellant actually travelled to Australia. However, she did give some evidence in her bail application in the Magistrates’ Court which fills in some of the chronological details, and which I consider important. She explained she came to Melbourne, experienced the ill health she claims would subsequently prevent her returning to New Zealand for her trial, and was persuaded by a friend to go to Perth to stay with her. The appellant put that timing at about mid-August 2015. She remained in Perth until 1 February 2016 when she flew to Brisbane and took up residence there. She remained in Brisbane until November 2018 when she moved to Leopold, Victoria, to live with her brother. Leopold is south-east of Geelong, towards Ocean Grove and Queenscliff.

80    The respondent identified a number of matters that it contended illustrated a pattern of avoidance of the authorities and an absence of any genuine intention to “face up” (as her sisters put it) to her conviction and sentence in New Zealand. Those matters are broadly consistent with the matters that were also relied on by the respondent in the Magistrates’ Court bail application, the transcript of which was in evidence before this Court. I have read those transcripts, and I find the appellant adopted the same approach to her evidence before the Magistrates’ Court as she did before this Court – namely; an inability to recollect anything very clearly or precisely when it might require a concession or be adverse to her, coupled with absolute denials of propositions harmful to her case for bail, but no compelling or persuasive alternative explanations about those matters.

81    As the respondent submitted in its post-hearing submissions, the appellant has been well on notice that most factual aspects of her case for bail are in dispute, and that is evident from her affidavit in support of this bail application. The transcripts from the Magistrates’ Court bail application were admitted into evidence by agreement. There was no need for an exhaustive line-by-line cross-examination of the appellant on every detail of every factual issue that was, in my opinion, obviously in contest between the parties, and on which she had already been cross-examined over several days in the Magistrates’ Court.

82    The matters identified by the respondent are as follows.

83    No steps were taken by the appellant to contact the New Zealand court and New Zealand authorities. I consider this should be given significant weight in the assessment of whether the appellant’s denials of avoiding detection should be accepted. It should also be given significant weight in terms of the assessment of the appellant’s likely behaviour if she were released on bail. If the appellant had meant what she said in her May 2015 affidavit to the New Zealand Court, it is inconceivable that she would not have made some attempt to contact the New Zealand authorities other than by the sending of a short email. It is inconceivable she would not have contacted them after the date for her trial had passed. On the basis of the matters set out in the respondent’s post-hearing submissions from [7] to [9], I find it is more likely than not that the appellant was aware she had been convicted and sentenced, and she was hoping to avoid the New Zealand authorities as much as possible. It is implausible that a person of the appellant’s legal experience and knowledge would, in the context of all the evidence before this Court about the nature and details of her prosecution, have genuinely believed the prosecution had been abandoned. Indeed, the appellant’s own affidavit of May 2015 aptly reveals she knew differently. Whether the appellant simply could not bring herself to face the situation she had created, and this unwillingness grew more acute as time passed, it is not possible to say. But I find her conduct was quite deliberate.

84    Next, I do not accept the appellant’s claimed mental breakdown as an explanation for either her failure to appear in New Zealand or her failure to contact the New Zealand authorities. The appellant, at the time and thereafter, has exaggerated her condition in an attempt to excuse her behaviour; see for example her statement in her 10 September 2015 letter to the New Zealand court that she could not even make a cup of tea. She was capable of, and did, fly from Melbourne to Perth in mid-August 2015, less than 2 weeks before she wrote that letter to the Court. Dr Hales’ medical certificate describes her as having “severe anxiety symptoms” and “hypertension”. Dr Hales is general practitioner, and the appellant admitted this at her Magistrates’ Court bail hearing. She referred her to a psychologist, not a psychiatrist. Dr Hales described the appellant as “struggling to look after her daughter”, but it is unclear on the evidence what caring role the appellant then had for her daughter, who was 18 and whose attendance at Melbourne University was ostensibly the reason the appellant sought to move back to Melbourne. I find it is likely the appellant was anxious, and perhaps severely so, about what she was facing in New Zealand. Any person in her position would be. However, I do not accept she was so ill that she could not travel to New Zealand for her trial, or her sentence, or make adequate and proper contact with the New Zealand authorities.

85    The appellant was able to make an application for a new Australian passport. She was able to communicate with her sisters, on one version of her evidence, very frequently. Aspects of the chronology as revealed by the evidence demonstrate it is unlikely the appellant had any genuine intention of returning to New Zealand. The appellant’s passport application in evidence reveals that her passport was due to expire on 7 September 2015. Her proposed date of travel was 10 September 2015. On the face of the document, her passport was still being processed (and on one view had been applied for) on 28 August 2015; that is just less than 2 weeks before she was proposing to travel. Her trial was due to start on 14 September 2015. That travel date would have given her only three clear days in New Zealand before her complex criminal trial was due to start. The evidence is that she was, by August 2015, “incommunicado” with the New Zealand prosecuting authorities. On her passport application, she gave her sister in Dunedin, Dr Lyndell Kelly, as her emergency contact and she stated in cross-examination that she had given Dr Kelly as her emergency contact “forever”. In other words, she filled out this passport application just as she usually would have filled out such a document. There was no evidence of severe incapacity. But leaving only three days between travel to New Zealand and the start of her trial was not the conduct of an experienced legal practitioner who was fully aware of what would be involved in defending the charges. It is more likely the conduct of a person who did not intend to return to New Zealand.

86    At the Magistrates’ Court, the appellant denied being “incommunicado” with her sisters at this time, despite that being a matter related in their victim impact statement:

MR BOTROS: Okay. So you deny telling your family that you wouldn’t communicate by electronic means because you were afraid of being tracked?

MS COATES-KELLY: I do. It’s possible that – that my sister might have thought that. She might have been extrapolating or – or guessing that that was – I – I – I don’t know, but I didn’t say it.

MR BOTROS: So is it true that at that time you refused to communicate with your sisters by phone?

MS COATES-KELLY: I – no. No. I – I would speak to my sister in Brisbane, not every day perhaps, but every couple of days at least at this time. Not sure about Lyndal in New Zealand, in Dunedin. I’m not sure.

MR BOTROS: This affidavit, or this document is dated October 2015. That’s around the time that you started using your friend Collette’s phone. Correct?

MS COATES-KELLY: Yes.

87    In her cross examination before this Court, I find the appellant was more evasive on this topic:

[MR HILL:] So your sisters, at this stage, knew that you were being sentence[d] on 14 October, didn’t they?---Apparently. I’m – I’m in the same position as you, Mr – Mr Hill. I’m reading the document to ascertain what it purports.

Now, they’re saying at paragraph 3 that they’re concerned for your health and wellbeing, and they’re aware that you failed to attend a trial on 14 September. So - - -?---Yes.

They are aware of those facts, aren’t they?---Well, I had a sister in Dunedin.

And so, at paragraph 4, they have a statement that you will not communicate electronically with your family. And they say that they’re close and supportive of the defendant. Now, do you – do you accept that’s true, that you sisters are close and supportive of you, just – at that time?---Broadly speaking, yes. Yes.

Yes. Yes?---I’m sure they were well intentioned and wanted to help as much as they could.

And you see, in paragraph 6 – this is on page 158 – they say they’re urging you to face up to your responsibilities in New Zealand. Now, what you’ve said in your affidavit is you don’t recall ever talking with your sisters about the New Zealand court date. That’s inconsistent with this document, though, isn’t it? This document says, they’ve been urging you to accept your responsibilities in New Zealand?---Well, I’m – I remember speaking – or, I think, I spoke once, is the best I can put it, with my Dunedin sister when I was in Perth. I think, on the other hand, my older sister in Brisbane spoke with me more often. And---

Sorry, just to cut you off there. Your – this first memorandum is on behalf of both your sisters, though, isn’t it?---Yes.

So if you spoke – and you do say you spoke regularly with your Brisbane sister, and both sisters say they are urging you to face a responsibility, aren’t they?---Well, this is not an affidavit. This is a memorandum of counsel. Now, I understand Australian lawyers – because I’m one of us – did not understand the difference that happens in practice in – in New Zealand with memoranda of counsel. This, in effect, is a merger of affidavit – of instructions and submission. That’s how memoranda of counsel operate in New Zealand. So this is misleading - - -

HER HONOUR: Ms – Ms Kelly – Ms Kelly - - -?---Yes.

I will just – I will just remind you to answer Mr Hill’s questions. I - - -?---Yes.

I know this is – I know this is a difficult experience for you, but please try and just focus on what the question is. Your answer may well be just a “no”?---Thank you, your Honour. Yes.

Okay? Mr Hill, can you - - -?---Thank you.

- - - ask your question again, please?

MR HILL: The question was, this memorandum, based on instructions from your sisters, shows that both sisters had urged the appellant to face up to her responsibilities. Now it’s true, it’s not an affidavit. But it would be on – on instructions, wouldn’t it?---I think – what I think happened is that - - -

I wonder, your Honour, unless there’s ..... speculation, whether I could just ask the appellant to answer the question. It’s based on---

HER HONOUR: Well, you’ve just asked – you’ve just asked a different question, Mr Hill. And now the proposition - - -

MR HILL: Sorry, it’s my fault.

HER HONOUR: - - - the proposition you’re putting to Ms Kelly is that Mr Hall would have written this memorandum on instructions. Now, if you want to put that proposition she can answer that and then you can go to other matters. But let’s be clear about what you’re asking.

MR HILL: Thank you, your Honour. I do put that proposition.

Mr Hall would have made this memorandum on instructions, wouldn’t he?---Well, I’m not going to criticise Mr Hall, but I have no idea. I have no idea of how he interpreted the instructions. Can I offer you this, Mr Hill? I have no doubt that my sisters, as did I, want that the law be complied with, want me to answer the charges. And the last time I recall discussing it in any form with them we were all confident in my prospects of success.

That’s different from what’s in this memorandum though, isn’t it?---To some degree, yes.

88    Taken as a whole, this evidence discloses the appellant was in touch with her sisters. I find it is more likely than not that they told her about the conviction, and the sentence, and they continued to urge her to return to New Zealand. They retained senior counsel and made victim impact statements at the appellant’s sentencing hearing, in order to place some material supportive of the appellant before the Court since she was not there. Having agreed that she was in touch with them, it defies belief that her sisters failed to tell the appellant what had happened at the trial and at the sentencing hearing. Yet, quite incompatibly with the appellant’s assurances to the New Zealand Court in May 2015, she remained in Australia, without communicating with the New Zealand courts or authorities and adopted a lifestyle likely to minimise the risks of her being detected.

89    Next, I find the appellant was served with New Zealand process in October 2018. Whether or not she now genuinely recalls that event, or has somehow blocked it out of her mind, is beside the point. I am satisfied the evidence of Mr Nott establishes service on the appellant.

90    The documentary evidence from Mr Nott consisted of an affidavit of service he made on 1 November 2018, his worksheet and an email from him. He also gave evidence in the Magistrates’ Court bail hearing. He stated:

I remember it really well because I thought it was going to be a difficult serve where the person wouldn’t answer the door and I might have to keep going back, but I was really – I remember coming out very happy because the lady answered the door, she was very polite, identified herself and took the documents. And I just remember being really happy that I – you know, that I got the job done in one go and as I was walking out to the car. That’s why I remember it. Very rarely you get a lot of first time orders when you’re expecting it to be a difficult one.

…

The person matched the photo and also the person identified herself, which – which means I didn’t have to drop the documents. It was a very successful serve. The lady was very polite to me as well.

91    Mr Nott was briefly cross-examined by the appellant’s then counsel, but there was no material change to his evidence. What Mr Nott served on the appellant were documents from civil debt proceedings brought by the NZ IRD, arising out of her criminal convictions. The worksheet of Mr Nott lists those documents as:

A.    Notice of Proceeding, dated 6 September 2018

B.    Information for defendant(s) dated 20 September 2018

C.    Statement of Claim

D.    List of Documents dated 6 September 2018

92    I find that in 2018, it is more likely than not that the appellant chose to ignore what was brought to her attention through those documents. She took no steps to contact the NZ IRD or any other New Zealand authorities.

93    The respondent identified a number of circumstances and events that it contended, taken together, supported the inference that the appellant was consciously attempting to avoid detection by New Zealand authorities. I agree that the evidence supports that inference. I do not accept the appellant’s alternative explanations, which I consider have been reconstructed.

94    The appellant changed her name in December 2018. This occurred shortly after Mr Nott served her with New Zealand process in October 2018. While the appellant offered explanations for this name change relating to her family history including an event in 2018, her own evidence was that this event was not the reason for all of the changes to her name – others were what she described as “whimsical and incidental”. The particular explanation about discarding her mother’s name because her mother was suffering progressive dementia and the name was no longer of “any consequence” to her mother seems implausible, given the appellant’s other evidence suggesting she was close she to her mother. The appellant’s assertion that there was no intent to conceal herself because the Queensland deed poll register is a public register ignores the obvious proposition, put to her in cross-examination, that one had to be aware of the change of name to search the register.

95    I also consider it of some significance that the appellant moved from Queensland to Victoria in November 2018; shortly after she was served with NZ IRD documents by Mr Nott. And, as I explain below, in making that move, the appellant deliberately elected not to put her name down as a co-tenant with her brother.

96    For the years leading up to her arrest the appellant was living in a rented house in Leopold with her brother. The appellant secured and arranged that rental house, yet only her brother was listed as a tenant. The agent who renewed the tenancy (Ms Farnsworth) did not know who the appellant was. The letter from the appellant’s brother, Donald Kelly, in support of his tenancy application was in evidence. It repeatedly represents that Mr Kelly would be the sole occupant of the house. For example:

I am a 52 year old divorcee with one adult son who lives in Qld. I am a consultant physiologist and biochemist. I live quietly and work from home on a consultancy basis, and don't have clients coming to the house. While I am alone a lot, I have very good close friends nearby to this house in the Estuary Boulevard estate, so that makes it ideal for me.

97    It also represents that his mother would be visiting “several times a year”, which is contrary to the appellant’s evidence about the state of her mother’s dementia at this time. The appellant sought to disassociate herself from this letter by claiming she did not know what her brother wrote, or what her brother wrote was a matter for him. I find that evidence not to be credible, given the appellant was closely involved in the tenancy application. I find it is probable she was aware he would be representing to the real estate agent that he would be the only occupant of the house. That is also consistent with the fact that the appellant’s brother recorded the appellant’s name, phone and email on his tenancy application as his “Accountant”; itself a falsehood since there is no evidence the appellant is an accountant as well as a lawyer.

98    There is a stark contrast between the level of the appellant’s involvement in securing the tenancy and her full time occupation of the house with her brother for several years on the one hand, and her absence from the tenancy application and from the lease itself as a co-tenant on the other. Being a co-tenant would have required a number of identity documents to be supplied, as the evidence demonstrates Mr Kelly did. These circumstances are in my opinion consistent with a pattern of the appellant avoiding, if feasible, her details being available on documents or databases that might be obvious places to search for her. On this occasion, it would appear she embroiled her brother in that deception.

99    The appellant did not obtain a driver’s licence when she returned to Australia. She was cross-examined about this in some detail in the Magistrates’ Court:

MR BOTROS: Yes. How long had you held that licence in New Zealand.

MS COATES-KELLY: I don’t know. Since I got there, I think

MR BOTROS: Since you got there. What year did you get there?

MS COATES-KELLY: 2007, I think.

MR BOTROS: So for around eight years you had a licence – at least eight years you had a licence and you drove predominantly Jaguars. Is that right?

MS COATES-KELLY: Yes.

MR BOTROS: Okay. Did you – do you hold an Australian drivers licence now?

MS COATES-KELLY: I don’t hold a current Australian drivers licence now. My last Australian drivers licence has expired.

MR BOTROS: When did it expire?

MS COATES-KELLY: I can’t tell you that off the top of my head, but I – yes. I’m sorry, I can’t tell you.

MR BOTROS: Is it correct to say that you didn’t hold a drivers licence in Australia since your arrival in late-2015?

MS COATES-KELLY: I can’t tell you. I – I think I still had an Australian licence. I – I – I’m not – I’m not sure. I’m sorry. I don’t have it in front of me and I have not had reason to think about this for a long time.

MR BOTROS: All right. Would you agree that you don’t – since arriving in Australia in 2015 you generally haven’t driven?

MS COATES-KELLY: Yes.

(Emphasis added.)

100    Before this Court, the appellant’s evidence was somewhat different. She stated she had a New Zealand licence and a Queensland licence, and that she always had a licence. She stated she was not driving “much” in Australia, and then gave this evidence during cross-examination:

[MR HILL:] But you still haven’t obtained an Australian licence since the middle of ’18 until your arrest, have you?---No. That’s - - -

No?---That’s true. I haven’t needed to drive much, and – but I realised I would need to and was about to deal with it when COVID prevented me from getting new glasses, which was a prerequisite to getting a licence.

(Emphasis added.)

101    A driver’s licence is a fundamental piece of documentation, often used as an identity document. Driver’s licence records are a notorious method by which people might be located, because they have an address on them, and a photograph. The evidence about the appellant’s car ownership in New Zealand makes it clear a driver’s licence was a fundamental piece of documentation to her, until she travelled to Australia before her trial and failed to return. Her explanations were not consistent, and it appears she has been driving in Australia (especially since she was living in regional Victoria since 2018) but she did not disclose whether she was doing so with a current licence. Nor, this having been an important subject on her former bail application, did she produce any licence ahead of this bail application. I find it is more likely than not that the appellant has consciously elected not to retain or obtain a current driver’s licence since she failed to return to her trial in New Zealand. I find this was one of the steps the appellant took to minimise the chances of being located by the New Zealand authorities.

102    As I have found, the appellant moved from Melbourne to Perth shortly after she arrived in Australia. She stayed with friends, apparently to at least January or February 2016 when she travelled to Queensland to see her mother. In substance she had no locatable address for the month or so before her trial in New Zealand and for the months after it. As a barrister of long standing, who had personally experienced applications for and the granting of bail, and variations to her bail conditions, I find the appellant was more likely than not to have been aware this was the time the New Zealand authorities would be seeking to locate her, and contact her, once it was clear she did not appear to answer her bail. Her conduct in moving to Perth to live with a friend meant it would be harder to find her address, unless she contacted the New Zealand authorities herself.

103    At the same time, the appellant claims that the friend with whom she was staying in Perth gave her a mobile phone. She claims this was a birthday present (her birthday being 15 October), but deposes:

she may have given it to me before that.

104    Since on her own evidence the appellant moved to Perth in mid-August, I find it is likely she was given the phone closer to mid-August than mid-October, especially since she also deposed that:

My Brisbane siblings called me many times while I was in Perth.

105    In fact, the phone records in evidence reveal the phone was issued on 8 September 2015, very shortly before Ms Kelly’s trial. This is one matter that establishes the appellant’s ability, if she chose, to telephone the relevant New Zealand authorities, or the Court, to try to explain why she would not be answering her bail.

106    The appellant’s friend from Perth, who is named by the appellant as “Collette”, has never given any evidence to corroborate the appellant’s account of these events, or indeed to support a bail application.

107    The appellant claims the phone was pre-paid and she “simply kept topping up the credit monthly”. The phone remained registered to her friend Collette, at an address in Western Australia, according to the phone records in evidence. That state of affairs continued until the appellant’s arrest last year. Again, a mobile phone, and the records that must be available for mobile phone ownership, are a common source used to locate individuals. Again, as an experienced barrister, I consider the appellant knew this. I find that her decision to continue to use a phone she knew was not registered in her name, and was registered to her friend’s address in Western Australia, was a deliberate one, part of a pattern she established to avoid common sources for tracking and identifying an individual, which she knew were likely to be used to locate her. In addition, her evidence was that she changed phones several times, but never changed the account or registration. Again, I find this was a conscious choice.

108    The respondent relies on the failure of the appellant to apply for an Australian practising certificate, despite “stating to the NZ Court in May 2015 that absconding would mean she would be ‘unable to practice, despite being at the peak of her professional career’: AB 149 [16](b)” (original emphasis). I do not accept this submission on behalf of the respondent, but for a specific reason.

109    The appellant was cross-examined about this matter:

Your current affidavit says that you never intended to practise when you returned to Australia, but you said to the court in May 2015 that you were at the peak of your professional career. They’re two very different statements, aren’t they?---No, they’re not, Mr Hill. Let me explain. I never intended to recommence practice at the bar when I came back to Australia. It’s a – it’s a hard and rugged road for females at the bar, as I learnt in Queensland in the eighties. I didn’t want to have to do that, but I did plan a future legal career. I was interested in two possible fields. One was refugee law and the other was – was law reform. So I was going to branch into a different field of my professional career, if you like. When I said peak, I – I was really referring – at that point, I had just won a couple of matters in the Supreme Court of New Zealand. That’s – that was what I would have had in mind.

But your paragraph 16 talks about you having more to lose as a lawyer, and then you talk about your professional career. It certainly gives the impression that you fully intend to practise law, doesn’t it, and that’s why you could be trusted to return?---Well, I’m not sure about practise law, but I certainly intended not to cease to be a lawyer.

110    What is conspicuously absent from the appellant’s narrative here is any reference to the fact that in July 2016 she was struck off the roll of barristers and solicitors by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. In her affidavit of 5 February 2022 she deposes (at [105]) that prior to her departure from New Zealand she was “co-operating with the Otago Standards Committee” in relation to an investigation, but does not depose to the fact the matter had proceeded to the Tribunal or that she had been struck off. The appellant gives no evidence about when she first found out about this event. Whenever that was, by the time of this bail application she knew about it. Yet, in her evidence about regaining her practising certificate, and in cross-examination, she said nothing about the fact she had been struck off in New Zealand, a matter that would clearly have been relevant (and perhaps determinative) of her ability to secure a practising certificate in Australia.

111    I find the appellant has sought to ignore what had occurred in July 2016 in New Zealand, when she was struck off the roll of practitioners. That conduct is consistent with her attitude of seeking to ignore most of the events that have occurred in New Zealand relating to her, and her determination to ignore their objective consequences. In my opinion, it is likely the appellant did not apply for a practising certificate, especially since 2018, because she knew she was unlikely to be given one.

112    At this point, it is appropriate to refer in more detail to the findings of the Tribunal. The Tribunal’s decision was in evidence. The Tribunal is chaired by a Judge. The applicant was the Otago Standards Committee, which was the body the appellant said she was in communication with before she left New Zealand. Again, there is no satisfactory explanation at all why she did not continue to be in communication with that body from Australia. Its recitation of some of the background facts is revealing, and is not consistent with the appellant’s account; or at least reflects omissions by the appellant of parts of the narrative. In the background section the Tribunal states (at [3]):

Ms Kelly is an experienced practitioner who has practised on her own account since 2010. The incorporated law firm under which she operated her practice, Kelly Chambers Limited ("KCL”) was placed into liquidation sometime prior to 12 September 2014, which was the date the Otago Standards Committee resolved to initiate an ‘own motion’ investigation into the firm and Ms Kelly.

113    Thus, the appellant’s law firm had been in liquidation for almost a year prior to her trial. The Tribunal’s reasons continue at [7] and [8]:

Until April 2015, Ms Kelly was in contact with the Otago Standards Committee and indeed provided a full response to the own motion investigation in which she indicated she would be defending the criminal charges. She conceded that should they be established, they might constitute misconduct under the Act [Lawyers and Conveyancers Act 2006 (NZ)].

At the conclusion of her response to the Standards Committee the practitioner had this to say:

“Please be assured of my co-operation and continued respect for the standards and honour of the profession of which I have been a proud member for 28 years. I am horrified at the prospect that I may be the cause for it to be brought into disrepute, even as I am horrified by the wrong assumptions and misapprehensions that are involved in the charges against me. I have a hard-won reputation for straight dealing, and I intend to ensure that reputation is vindicated.”

114    Reference is then made to parts of the appellant’s May 2015 affidavit, which I have extracted above.

115    At [10] the Tribunal noted:

As recorded by Judge Kellar in his reasons for judgment given on 17 September 2015:

“… Significantly, Ms Kelly undertook to the Court to appear for trial on 14 September 2015. My Kelly deposed that as a barrister of 28 years standing she understood the gravity of her undertaking and the consequences of failure to honour it.”

(Footnotes omitted.)

116    Having recited the narrative of how the appellant came to be convicted, the Tribunal stated at [16]:

The Tribunal had no difficulty in finding, following consideration of the material provided by the Standards Committee that the charge as pleaded had been made out. There was no question but that conviction of offences such as these, not only reflect on Ms Kelly’s fitness to practice, but also tend to bring the profession into disrepute.

117    In that part of its decision as to penalty, the Tribunal characterised the appellant’s conduct in the following way (at [19] and [21]):

We accept the submission that this ought not to be characterised as merely a failure to pay a tax debt, but that it contains an element of dishonesty, indeed fraud, because the funds owing were deducted from employees’ wages and therefore held on their behalf in a relationship of trust until paid to the Inland Revenue. Similarly GST has been charged to and received from clients and then not passed on to Inland Revenue.

…

C.    Failure to Answer the Charge

As submitted by Mr Shaw “this is a particularly troubling aspect of Ms Kelly’s conduct …”. We have referred to an affidavit sworn by her and presented to the District Court in support of an indulgence granted to her to be able to leave the country while facing these charges. She obtained that indulgence by relying on her reputation as a lawyer of many years experience and one who took seriously her obligations as an officer of the Court. She utterly betrayed those principles and her duty as an officer of the Court in failing to appear and confront the charges laid against her. This is a seriously aggravating feature of the offending itself.

118    While the appellant has made it clear she does not accept her conviction, and she does not accept that she is guilty of the offences for which she was convicted, the fact is that she has been convicted. She knew the Otago Standards Authority was investigating her conduct. After her conviction, I infer she knew what was likely to happen about that investigation, and I infer she had a reasonable apprehension of where it would lead, as would any long term and experienced legal practitioner. Yet she made no contact at all with her professional standards bodies. That is not the behaviour of a practitioner who understands their professional obligations, or who can be trusted to follow through on obligations assumed.

119    Further, I also accept the respondent’s submissions that the appellant has failed to produce evidence to corroborate and support her version of events, including evidence from the following people who feature at key points in the narrative:

Dr Donald Kelly – her brother, who could speak to her lease agreement, her whereabouts on the date of service by Mr Nott, and generally to her conduct between 2015 and 2020.

Dr Lyndell Kelly and Dr Stephanie Smith – Her sisters, who could speak to her state of mind at the time of their memorandum to the NZ District Court, and to whether they informed her of her sentencing at any time between 2015 and 2020.

Dr Hales – her GP in Perth, who could speak to her mental state in 2015. So too could her treating psychologist, who was also not called.

120    Since the hearing was held remotely, it would have been straightforward for these individuals to give evidence. In her bail application before the Magistrates’ Court, the appellant was cross-examined about the lack of medical evidence or reports supporting her claims about how ill she was in September and October 2015. This was her evidence:

MR BOTROS: Yes. Thank you. You also gave evidence that a doctor in Melbourne told you to go to the hospital.

MS COATES-KELLY: Yes.

MR BOTROS: Who was that doctor?

MS COATES-KELLY: I – I could tell you where the practice was, but he won’t – if the – doctor – Prahran – it – it was in Prahran. I think it was High Street. I don’t know his name. I only saw him once because I was unwell.

MR BOTROS: Those are records that you could obtain if you wanted to, right, Ms Coates-Kelly?

MS COATES-KELLY: Yes, and I probably will when I get out of here.

MR BOTROS: Yes. And after you were advised in Melbourne that you were so unwell that you needed to go to hospital, you say that you went to Perth initially for a visit.

MS COATES-KELLY: Not that afternoon. Not that afternoon. I went back and tried to get better. I – I started to [sic] the meds that I was prescribed and I tried to get better, and I was expecting that my friend was coming to visit me over a few days, or perhaps a bit longer, it was decided that if I get to Perth, where I could stay for longer and be looked after.

MR BOTROS: And at some point you felt well enough to travel to Perth notwithstanding that you were advised to go to hospital.

MS COATES-KELLY: Well, he said – he said, “How far are you going because you should go to hospital.” I didn’t – I – as anyone who knows me would tell you, I’m very [averse] to going to hospital.

MR BOTROS: Right. And so you felt well enough to go to Perth and then you were treated by Dr Hales in Perth.

MS COATES-KELLY: Yes.

121    This extract is an example of several difficulties with the appellant’s narrative, and with her evidence. It is a good example of the asserted failure of recollection (who the doctor was); yet an ability to recall what he said in some detail. The appellant foreshadows securing further medical evidence from that time, but on this bail application she has not done so. Her own evidence suggests she has exaggerated her condition, since she states she only saw the doctor once and did not give evidence of seeing any other doctor in Melbourne. Instead, she was capable of flying from Melbourne to Perth, which the Court can take judicial notice is approximately the equivalent travel time as Melbourne to, at least, Wellington or Auckland. There is no explanation, let alone a rational explanation, for how she could fly to Perth in mid-August 2015, but not to New Zealand only a couple of weeks later (or indeed, in mid-August).

Conclusion on risk of flight

122    I am firmly persuaded that this pattern of behaviour demonstrates that the appellant consciously decided not to return to New Zealand for her trial in September 2015, and thereafter sought to make it difficult for the New Zealand authorities to locate her within Australia. She has also consciously avoided contacting the New Zealand authorities herself. All it would have taken was one phone call. This failure is not some “lapse in professional standards” as the appellant described in her 5 February 2022 affidavit. The fact that the appellant would describe it like that illustrates her unwillingness to accept the seriousness of her own conduct. If the contents of her May 2015 affidavit are to be accepted, the appellant had accurate insight into what lay ahead for her if she made a deliberate choice not to return to New Zealand to face her trial. However, once the appellant found herself in the predicament she did and once she had decided not to return to New Zealand (for whatever reason), the pattern of her behaviour since then has been one of avoidance. She has sought to avoid obvious means for her detection, and to avoid taking responsibility for having failed to appear at her trial. That pattern was continuing at the time of her arrest. In those circumstances, it is not possible for the Court to trust her word that she has no intention of fleeing and that she would abide by the conditions of her bail. In particular, the only rational conclusion to draw from the appellant’s own inaction in contacting New Zealand authorities is that she is intent on avoiding the consequences awaiting her in New Zealand.

123    It is correct, as counsel for the appellant submitted, that the appellant did maintain or acquire some identity documents throughout her time in Australia since 2015, and did not always attempt to conceal her address, although this behaviour is relatively recent. The local chemist at Leopold had her address. She had a Medicare card (apparently in her new name). She had a seniors card (in her new name). In that sense, counsel for the appellant was correct to submit the appellant was not entirely off the grid. However, other parts of the appellant’s evidence indicate she has a number of health conditions and I find it was probably not possible for her to live in a day-to-day sense without access to Medicare and to a chemist. These departures from her otherwise longstanding pattern were out of necessity.

124    There was a flavour to the submissions for counsel for the appellant that the investigations by or on behalf the New Zealand authorities, in particular through Constable Purser, were ineffectual and sub-standard, since there were obvious ways that the appellant could be located. In my opinion, any focus on the adequacy or otherwise of the attempts by Constable Purser of the AFP to locate the appellant on behalf of the New Zealand authorities, or any earlier attempts by the New Zealand authorities themselves, misses the key point in terms of assessing risk of flight. The key point is that the appellant herself, as a longstanding practising barrister, well knew she was the subject of charges, well knew she had been granted bail, well knew she elected not appear for her trial, and well knew her sisters were concerned to assist her before the New Zealand courts. I find she consciously refused to contact the New Zealand authorities and refused to engage with what was happening to her. The point is not how well the search for the appellant was conducted; the point is that the appellant made herself difficult to find and detect.

125    Therefore I reject the submissions on behalf of the appellant that it is “fanciful” she could “fly under the radar” if released on bail. While the risk of her doing so might not be high, I am firmly persuaded it is a real risk, given the evidence of her behaviour, and her attitudes, to this point.

126    As to the suggestion of electronic monitoring, the respondent submitted the statement that the appellant would “consent” to electronic monitoring carries no real weight because:

(a)    the risk of flight must be considered independently from any proposed conditions (Cabal at [61], [79]);

(b)    it has been held that this type of measure cannot redress an unacceptable risk of flight (Cabal v United Mexican States [2000] FCA 7 at [109]-[110]); and

(c)    the appellant has not made any proper proposal for such monitoring, and there is no supporting evidence from which the Court could determine if it was a suitable option or not.

127    I accept that submission.

The role of an assessment of prospects of the appeal on the bail application

128    Another part of “all of the circumstances of the case” (Cabal at [74]) is the likelihood that an individual will successfully resist extradition. Generally, successful resistance will lead to an individual regaining their freedom, and to there being no obligation on Australia to ensure they are available to the requesting state. If a Court being asked to consider an application for bail considers there is a strong likelihood that the extradition will fail, then it is clear this is capable of being relevant to the discretion to release a person once special circumstances have been proven.

129    How the Court approaches this factor may depend on the stage of the extradition process. In the present case, the appellant’s arguments against extradition have been rejected by a Magistrate, and by a single Judge of this Court. Those facts tend against the proposition that her challenge has good prospects of success.

130    Senior counsel for the respondent referred to Cabal (at [62]) where the Court stated:

Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight.

(Emphasis added.)

131    What is under discussion in this passage is “prospects”; in that context in my opinion no more than a preliminary assessment is required by the Court on a bail application. That is consistent with what is said in Cabal at [53] about “a high probability of success” (emphasis added). Having done that, the Court must be able to characterise those prospects as “strong” before this circumstance can weigh in favour of the grant of bail.

The “New Zealand warrant” argument

132    Sub-sections 34(1)(a) and (b) provide, as a foundation to the jurisdiction of the Magistrate under s 34:

(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.

133    The term “New Zealand warrant” is defined in s 5 of the Act as follows:

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.

134    There were arguments put to the Magistrate, and the primary judge, that the warrant that had been indorsed under s 28 of the Act was not a “New Zealand warrant” for the purposes of this provision, and therefore (as I understand it), the Magistrate had no jurisdiction to order the appellant be surrendered to New Zealand. These were rejected by the Magistrate, and by the primary judge.

135    Counsel for the appellant indicated there were new submissions to be made about why the warrant on which the extradition is founded is not a “New Zealand warrant”. He submitted these new submissions gave the appellant strong prospects of success before the Full Court, and those strong prospects on a new argument also constituted special circumstances. On questioning from the Court, counsel also accepted that to raise this contention the appellant would need to impugn [66] and [67] of the primary judge’s reasons, where his Honour held that neither the Magistrate nor this Court could inquire into the validity of the New Zealand warrant, that being a matter for the New Zealand courts.

136    The new point can be summarised as a contention that on the evidence during the extradition process, what counsel described as the “founding document” – the indorsed warrant issued under s 28 of the Act – is not only “partially wrong, but is 100 per cent erroneous”. That is because, counsel contended, it cites 46 charges for which on New Zealand’s own evidence the appellant was never charged and convicted. Further, the warrant does not cite the offences for which she was charged and convicted. Counsel for the appellant submitted this contention was based on a construction of ss 143A, 143B and 148 of the Tax Administration Act 1994 (NZ) (NZ Tax Act). In substance, the contention is (as described in the appellant’s post-hearing submissions):

Despite requests by Kelly, NZ has to date declined to produce the charging documents founding the warrant. Kellar DCJ’s reasons show that all charges were exclusively for “aiding and abetting” Kelly Chambers under s.148. Dalton deposed that each charge in the warrant involved “aiding and abetting Kelly Chambers Limited. Tasker exhibited the relevant sections. Properly construed, the offences of “aiding and abetting” are exclusively created by s 148, while ss 143A and 143B create “principal offences”, distinct from the separate offence under s.148. Kelly, the alleged aider and abetter, could not be the principal offender. She was never charged with the principal offences.

Anderson J, as did Magistrates earlier, proceeded on the erroneous basis that Kelly had been charged with and convicted of principal offences under ss 143A and 143B, although he was aware (at [16(1)]) that the offences were for ‘aiding and abetting’. Respectfully, His Honour was led into error by NZ’s misleading submissions (at [51]) that Kelly had been convicted of principal offences. It is staggering that, over several hearing days before magistrates and in Anderson J’s judgment, it appears that s.148 is not mentioned even once.

(Footnotes omitted, original emphasis.)

137     Counsel for the appellant submitted that there were circumstances in which Courts of the requested state could look behind a warrant, and that this situation fell within those circumstances.

My conclusions

138    The first hurdle for the appellant is that a number of concessions were made on her behalf before the primary judge. Paragraphs [63]-[67] of the primary judge’s reasons should be set out:

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.

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.

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”.

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.

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.

139    Shortly before the hearing of the bail application, apparently in recognition of this hurdle, the appellant’s solicitors filed an interlocutory application seeking leave to withdraw a range of admissions, some specified and some not, made in the Court below on her behalf. The following orders are sought:

1.     The Court grants the Appellant leave pursuant to rr 26.11 or 1.32 of the Federal Court Rules 2011 to withdraw the admissions made at paragraphs [13(c)(i)-(ii)] of her Concise Statement filed in the below proceedings on 13 September 2021.

2.     The Court grants the Appellant leave pursuant to r 1.32 of the Rules leave to withdraw any informal and/or oral admissions made in the below proceedings, including proceedings before the Magistrates Court of Victoria, that she was charged or convicted of any offence under ss 143A or 143B of the Tax Administration Act 1994 (NZ).

140    At the hearing, and by order 4 of orders dated 11 February 2022, I adjourned that interlocutory application over to the hearing of the appeal before the Full Court. Neither party opposed that course. That is a matter on which the Full Court must rule, as the purpose of the interlocutory application is to support the appellant’s grounds of appeal, including (I apprehend) the new ground I have just described. It is clear from the extract from the primary judge’s reasons that some of the concessions made to the primary judge might foreclose the new argument. That is because they concede the appellant “was convicted” of offences against the principal liability provisions of the NZ Tax Act, and do not maintain any contention that these are the incorrect provisions and she should only have been convicted under s 148 of the NZ Tax Act, being the accessory provision.

141    In and of itself, on the conduct of the case before the primary judge, the existence of those concessions is sufficient to conclude at a preliminary level that this new contention enjoys little prospects of success. A party faces a considerable hurdle in being granted leave to withdraw concessions: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 at [17]-[22]; Certain Underwriters at Lloyd’s Subscribing to Contract Number NCP106108663 v Aquagenics Pty Ltd (in liq) [2018] FCAFC 9; 352 ALR 131 at [27].

142    Second, the respondent is correct that this new argument seeks to go behind the New Zealand warrant in a way that is neither required nor permissible under s 34 of the Act.

143    In New Zealand v Johnston [2011] FCAFC 2; 274 ALR 509 at [11], the Full Court extracted the applicable principles relating to the operation of Part III of the Act, highlighting some of the differences between that Part and Part II (relating to all other extradition countries). As the Full Court in New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250 explained, the legislative scheme in Part III is much more confined, in terms of what can be raised by way of opposition to extradition. In particular, at [33], the Full Court in Moloney stated:

As Pt III of the Act is intended to relieve New Zealand of the obligation to show or defend even a prima facie case in the Australian courts it is unclear precisely what practical role s 34(4) is intended to play. It may be that it merely makes explicit what is in any event implicit in the statutory scheme. Subject to one qualification, which is discussed below, an extradition proceeding involving New Zealand does not allow for any consideration of the strength of the case against the person whose surrender is sought.

144    By inviting the Court to decide that the accessory liability provisions in the NZ Tax Act should have been the ones set out in the New Zealand warrant indorsed under s 28 of the Act, , the appellant is inviting the Magistrate (and this Court on review and appeal) to decide whether the correct, or incorrect, provisions of the NZ Tax Act have been identified. That is a matter going to the strength of the case against the appellant.

145    On the face of the New Zealand warrant indorsed under s 28 of the Act, it can be seen there may be some matters calling for explanation. The respondent submitted that the appellant could have, but has not, sought judicial review of the Magistrate’s exercise of power under s 28 of the Act, pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth). That submission appears to be correct. If the New Zealand warrant was defective on its face in a way that affected the jurisdiction of the Magistrate lawfully to indorse it, then the proper avenue to raise this was a judicial review proceeding. How an outcome on judicial review might have ultimately assisted the appellant avoid extradition is unclear, but that matter need not be further explored.

146    No judicial review having been sought, the approach taken by the primary judge was, with respect correctly, to focus on the statutory terms of the Act. His Honour decided (relevantly) that s 34(1)(a) of the Act operates on the historical facts set out in sub-s (i): that is, the fact of a person being remanded, and the fact of this occurring under (relevantly) an indorsed New Zealand warrant. The Full Court’s decisions in Moloney and Johnston support this approach.

147    I do not consider that, even on a preliminary assessment, the appellant’s arguments on the appeal have strong prospects of success, including her proposed new argument.

148    Further, even if I had reached a conclusion favourable to the appellant on this matter, it would not have persuaded me that it was appropriate to release the appellant on bail. I would not have altered my view that there are no or no sufficient special circumstances, nor that the appellant poses a real risk of flight.

The new “unjust or oppressive” argument

149    In her written submissions after the hearing, and for the first time, counsel for the appellant sought to advance an argument that it would be “unjust” or “oppressive” within s 34(2) of the Act to surrender her to New Zealand. This contention appears to be confined to the contention about the alleged defects in the indorsed New Zealand warrant. I do not consider there are any greater prospects of persuading a Full Court the appellant’s extradition is unjust or oppressive because of the warrant argument than there are of persuading the Court that the warrant argument should be accepted. That is especially so when the proper forum for these arguments is the New Zealand courts.

150    As the respondent submits, the authorities on which the appellant relies (Johnston and Kenneally v New Zealand [1999] FCA 1320; 91 FCR 292) relate to a situation where a person whose extradition was sought had been charged and not convicted, and the prima facie evidence New Zealand relied upon to seek extradition could not possibly have supported the offences for which the person had been charged. Where the appellant has been convicted, this issue does not arise.

151    I note also what was said in Moloney at [36]-[37] about the assumptions Australian courts can make about the fairness of the New Zealand justice system, and the finding in Johnston at [14(e)], referring to Moloney, that:

In the composite expression “unjust, oppressive or too severe a punishment”, injustice is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself and oppression is directed to the hardship visited upon the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration (at [66]–[73] (pp 263–265)).

(Original emphasis.)

152    The appellant raises nothing of this kind.

153    The new reliance on the ground in s 34(2) does not assist the appellant in her bail application.

CONCLUSION

154    In Cabal at [70], the Court stated:

The purpose of the extradition proceedings is set at risk if an applicant is entitled to bail upon proof of special circumstances and a probability that the applicant will not abscond. If there is a real risk that the applicant will abscond, the objects of the Act and the rationale of ss 15 and 21 require the refusal of bail in all but exceptional cases. Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail.

(Original emphasis.)

155    Although these observations are not made about extradition to New Zealand, the provisions are relatively identical and in my respectful opinion it is appropriate for a single judge to see these remarks as binding. The appellant therefore had an extraordinarily difficult task in attempting to surmount these legal hurdles. She has not been able to do so, and bail must be refused.

156    I will recommend to the Court’s National Operations Registry that the appeal be given as much expedition as is reasonable, given the appellant will remain in custody.

157    On the costs of the bail application, the application involved a question of liberty. I have accepted that, on the evidence, the conditions endured by the appellant through the last part of 2021 and into 2022, in common with all prisoners in Victoria, have been extremely difficult and many of their usual entitlements have been curtailed or suspended. It was not unreasonable for the appellant to seek her freedom, and there has been no unreasonable delay or costs incurred in the way the bail application has been prosecuted. It is not appropriate that New Zealand be compensated for its costs in such circumstances. The parties should bear their own costs.

Associate:

Dated:    28 February 2022