Federal Court of Australia

Kisun, by his litigation representative Kisun v New Zealand [2023] FCA 1576

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s applications under ss 35(6)(g)(iii) and (iv) of the Extradition Act 1988 (Cth) be dismissed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The Applicant is a 77-year-old man. On 12 September 2023 he was arrested pursuant to a New Zealand warrant indorsed by a New South Wales magistrate under s 28 of the Extradition Act 1988 (Cth) (‘the Act’). The warrant charges that the Applicant committed child sex offences against two boys at a Marist Brothers school in Wellington between 1969 and 1971. After his arrest the Applicant was brought before a magistrate at Nowra and remanded in custody. On 2 November 2023, a magistrate signed a warrant for the Applicant’s surrender to New Zealand and a warrant committing the Applicant to prison pending the execution of the surrender warrant. The Act confers on the Applicant a right to seek a review of a decision to issue a surrender warrant. It is not in dispute that such a review has been filed. It is yet to be determined.

2    The Applicant is represented by a litigation representative in this Court because there is some question about his mental fitness to bring a proceeding. Mr Walsh, the solicitor acting for the Applicant through his litigation representative, submits that the Applicant is not fit to give instructions and is not fit to face a trial in New South Wales. There is some evidence touching on this topic before the Court. It is not necessary to traverse it in detail. It suggests that the Applicant is an elderly man who can barely walk, who suffers from several serious conditions such as heart disease, diabetes and depression, and who may have some cognitive deficits.

3    The possibility of cognitive deficits led Mr Walsh to submit that this Court should now make orders which would permit the Applicant to be medically examined for the purpose of gathering evidence to prove that he is not fit to stand trial. To this end, Mr Walsh has made appointments for the Applicant to see a psychiatrist, Dr Nielssen, and to have a scan of his brain taken in a magnetic resonance imaging machine.

4    A difficulty confronting the Applicant in attending these appointments is the fact that he is presently being held in custody under the warrant of detention issued on 2 November 2023. Mr Walsh therefore seeks on behalf of the Applicant orders that would permit the Applicant to attend these appointments. He seeks to do so on two bases. First, by the making of an order under s 35(6)(g)(iii) of the Act that the Applicant be kept in ‘such custody as the court directs’ and, in particular, that he be kept in a form of custody which includes taking him to the medical appointments which have been scheduled. Secondly, by the making of an order that he be released on bail under s 35(6)(g)(iv). Bail can only be granted under that provision if there are present ‘special circumstances justifying such a course’. Mr Walsh submits that the need to have the Applicant medically examined to determine whether he is fit to stand trial constitutes special circumstances.

5    It is convenient to assume in the Applicant’s favour that ss 35(6)(g)(iii) and (iv) could, in theory, authorise the making of an order to facilitate the medical examination of a person who was being detained under a warrant of detention pending removal to New Zealand under a warrant of surrender. However, making that assumption, such a power would only be able to be exercised for the purposes of Part III of the Act. Thus, assuming that medical examination can be facilitated under s 35(6), it must be capable of producing evidence which can bear upon the exercise by this Court of its review function. The review in this Court of the magistrate’s decision is by way of rehearing although the Court may have regard to evidence in addition to or in substitution for the evidence which was before the magistrate: s 35(6)(d). On review, this Court is to confirm the order made by the magistrate or quash it: s 35(2).

6    The question for this Court on the review application will therefore be the same question which the magistrate was required to answer under s 34. In substance this will be the bare question of whether an order should be made under s 34(2). It provides:

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

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

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

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

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

7    Thus the Applicant will need to demonstrate that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand. There are two bases on which that contention might be advanced. First, that it has been more than half a century since the alleged commission of the offences. Secondly, that his mental condition is such that he is not fit to stand trial. Only the second of these is relevant for the purposes of Mr Walsh’s efforts to have the Applicant medically examined.

8    Assuming in the Applicant’s favour that I made orders which permitted him to be examined by an expert and, further, that the expert then produced a report which said that he was not fit to stand trial, the question would be whether, on the review application, acceptance of this evidence could lead the Court to quash the magistrate’s decision to issue the surrender warrant.

9    I do not think it could. If the Applicant is not fit to stand trial I am unable to discern any reason why it would be unjust or oppressive or too severe a punishment to require him to make this point in New Zealand in the court before which he is eventually arraigned. As the Full Court’s decisions in New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250 at [36]-[37] and Coates-Kelly v New Zealand [2022] FCAFC 131; 294 FCR 422 at [92] well show, extradition to New Zealand sits in a special position. The courts of this country have high regard for the courts of New Zealand and proceed on the basis that it may be accepted that proceedings before them are conducted fairly. If the Applicant has a good argument that he is not fit to stand trial then I am bound to proceed on the basis that he may make that submission to the New Zealand court in which he is arraigned and, further, that his submission will be dealt with fairly. That being so, I see no prospects of the Applicant establishing under s 34(2) that he should not be surrendered to New Zealand because he is not fit to stand trial.

10    Thus, even assuming the power in s 35(6)(g)(iii) or s 35(6)(g)(iv) can be used to facilitate a medical examination, I do not accept that there would be any utility in exercising that power in the present case. At best, it would result in evidence showing that the Applicant was not fit to stand trial but this could not result in his warrant of surrender to New Zealand being quashed.

11    In the alternative to those two applications, Mr Walsh also pursued an application for bail under s 35(6)(g)(iv) which was freestanding in the sense that it was unrelated to the Applicant’s need for medical examination. It is agreed that bail can only be granted to the Applicant if there are special circumstances justifying that course.

12    The Applicant is an elderly and frail man facing historic child sex offence charges in New Zealand. He has a number of health conditions including not being at all steady on his feet, heart problems, diabetes and depression. I accept that he is in bad shape and that being held in custody in such a condition is not good for him. Whilst persons on remand are provided with health care by the New South Wales Government, I accept that the provision of services to the Applicant is unlikely to meet the reasonably high needs his various morbidities currently entail. Relevant too are the particular risks faced by the Applicant whilst in detention. These risks arise not only from the fact that he is facing child sex charges in New Zealand but also because he has previously been convicted of similar offences in the Australian Capital Territory. I take into account that as a child sex offender the Applicant faces an increased risk of violence and I propose to assume that this problem is exacerbated by his age and frailty.

13    It should also be taken into account that the events giving rise to these charges happened more than 50 years ago and that s 34(2)(c) is explicit that this length of time may be taken into account in determining whether it would be unjust, oppressive or too severe a punishment to surrender the Applicant to New Zealand. I would therefore accept that the Applicant has some prospects of resisting surrender on the hearing of his review application. I would not say that the Applicant has a strong case for resisting surrender but neither is it hopeless. On any view, half a century is a very long time to wait to charge a person with an offence. On the other hand, child sex offences arising from teaching activities at schools often taken a very long time to come to light. These ideas are in tension. That tension shows the matter is arguable at least from the perspective of a bail application.

14    Taking all of these matters together I do not accept that the Applicant has established special circumstances within the meaning of s 35(6)(g)(iv). He is in the kind of situation that a person facing historic child sex charges in New Zealand would expect to find himself in. Whilst I accept that there is much in the Applicant’s circumstances which may fairly be described as unfortunate I do not think that this makes them special. To the contrary, the Applicant’s unfortunate circumstances appear to me to be typical of a man in his situation. The normal rule in extradition cases is that the person remains in custody. The normal rule may be displaced when there is some unusual and extraordinary reason to depart from it: Cabal v United Mexican States [2001] HCA 42; 180 ALR 593 at [33] per Kirby J; United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 at [72] per Gleeson CJ, McHugh and Gummow JJ. The normal rule is not displaced here.

15    In the absence of special circumstances, the Court’s power to grant bail under s 35(6)(g)(iv) does not arise. It is not necessary therefore to consider whether it would have been appropriate to grant bail had there been special circumstances.

16    I will therefore dismiss each of the applications made by Mr Walsh. The Applicant’s review application should be dealt with as soon as possible. The parties may liaise with my Chambers to obtain a date.

Associate:

Dated:    12 December 2023