Federal Court of Australia

Kisun v New Zealand [2024] FCA 224

ORDERS

THE COURT ORDERS THAT:

1.    The order of Magistrate Christopher Wayne dated 2 November 2023 be confirmed.

2.    The Applicant pay the First Respondent’s costs as taxed, assessed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    The question in this case is whether the Applicant, Mr Kisun, should now be surrendered to New Zealand to face 11 charges of historical sex offending. A magistrate sitting at Nowra concluded that he should be and the question for this Court on a review by way of rehearing under s 35(6) of the Extradition Act 1988 (Cth) (‘the Extradition Act’) is whether that conclusion should be affirmed or quashed.

2    Section 34(1) and (2) of the Extradition Act provides:

(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 Federal Circuit Court Judge by or on behalf of the person or New Zealand for proceedings to be conducted under this section;

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

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

(d)    by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison.

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

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

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

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

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

3    I have concluded that the learned magistrate’s decision should not be quashed.

Facts

4    Mr Kisun was born in 1946 as the sixth of eleven children and is presently 78 years old. He grew up in Suva in Fiji and completed his schooling in New Zealand and Fiji. He became a Marist Brother at some point and taught in New Zealand. He left the order after four years and in 1976 became a teacher at Marist College in Canberra where he taught until 1985. He married his wife in 1979, with whom he has two daughters. Subsequently he taught at a Catholic primary school at Merrylands in Sydney for 19 years. He retired from teaching at the age of 68 which would have been in 2014.

5    In 2016 Mr Kisun was arrested by Australian Capital Territory (‘ACT’) Police and charged with indecent assault of a student at Marist College Canberra. The charges stemmed from statements that were made to the Royal Commission into Institutional Responses to Child Sexual Abuse. There were three charges. At a trial in 2016 he was acquitted of one count and the jury could not agree a verdict on the other two.

6    During this time Mr Kisun went to live with his daughter at Campbelltown who supported him during the criminal trial process. Apparently this was as a result of his separation from Mrs Kisun.

7    From 7 March 2017 Mr Kisun consulted Dr Angela Parasher, to whom he had been referred by his general practitioner, Dr Ahmed, for psychological assessment and treatment. Mr Kisun attended Dr Paresher 24 times between 7 March 2017 and 30 October 2018. When Dr Paresher began treating Mr Kisun it was her view that, in terms of the Diagnostic and Statistical Manual of Mental Disorders (‘DSM-5’), he was suffering from Major Depression, Anxiety with Panic Disorder Symptoms along with an Adjustment Disorder. There was also a significant increase in his symptoms of Major Depressive Disorder. It was Dr Paresher’s opinion as at 30 October 2018 that Mr Kisun’s symptoms were linked to the charges he was then facing before the Supreme Court of the ACT.

8    A second trial took place in October 2018. The two alleged victims (‘Victim A’ and ‘Victim B’) both gave tendency evidence in this trial. Both were students at the school in Wellington where Mr Kisun taught in the late 1960s and early 1970s. Mr Kisun was convicted on four counts and acquitted on one. He was sentenced by way of suspended sentence for 3 years and 6 months on 2 November 2018: R v Kisun (No 5) [2018] ACTSC 311. It is apparent from the sentencing remarks that at all times Mr Kisun remained on bail until he was sentenced: [25]. The formal order imposing the suspended sentence was:

Each of the sentences is wholly suspended upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years and six months.

9    That period expired on 2 May 2022. Mr Kisun’s daughter says that her father was a broken man after his conviction and that his health deteriorated. On 2 November 2018 he was placed on the Child Protection Register. Having been placed on that register Mr Kisun was required under the Child Protection (Offenders Registration) Act 2000 (NSW) to report various matters to the police including if he changed motor vehicle and if more children were born in his family.

10    On 5 August 2019 Mr Kisun presented to the emergency department at Campbelltown Hospital with chest pains. He was discharged to home but told to see his general practitioner, Dr Ahmed, within a few days to arrange a cardiac stress test.

11    On 21 June 2021 Mr Kisun was admitted to St Vincent’s Hospital in Sydney where he underwent quadruple bypass surgery. The surgery was complicated by a significant infection at the sternotomy site (i.e. where the sternum was cut to allow access to the chest cavity). This required further surgical procedures involving sternal wound washouts. After several weeks he was discharged from St Vincent’s and taken to Nepean Hospital for his ongoing care. Subsequently he was sent home where he received ‘Hospital in the Home’ care as an acute patient. This involved daily administration of medication by a peripherally inserted central catheter line by visiting nurses together with regular blood and blood pressure tests. He was discharged from this service on 9 August 2021. At that time, he had been recovering from the heart surgery and its complications for six weeks. He remained under the care of the cardiothoracic unit at St Vincent’s as well as an infectious diseases specialist (presumably in relation to the infection arising from the sternotomy).

12    On 20 August 2021 Dr Lui, a doctor at the St Marys Medical Centre, expressed the view that Mr Kisun was very weak, unsteady on his feet and deconditioned due to his prolonged hospital admission and complicated recovery from his heart surgery and that, inter alia, he required a high level of constant care and assistance.

13    During this period Mr Kisun lived in Werrington, where Mrs Kisun had moved in 2020, to be looked after by her. At the end of 2021 Mrs Kisun sold her house and the couple moved to Bomaderry. Mrs Kisun gave evidence, which I take to be evidence about Mr Kisun’s condition in 2022, that Mr Kisun had significant memory problems, spent a lot of time sleeping and was confused in the way he expressed himself.

14    On 10 June 2022 Mr Kisun was seen by a neurology trainee at St Vincent’s, Dr Maamary. He had been referred to Dr Maamary for investigation of the causes of his general weakness and progressive functional deterioration. Dr Maamary did not think that there was a primary neurological process which accounted for Mr Kisun’s condition. Rather, he thought that given the severity of Mr Kisun’s illness the symptoms were multifactorial and partially to be explained by abnormalities noted in recent blood tests and deconditioning. He thought it would be useful for Mr Kisun to obtain an MRI scan within 12 months and then to return to the neurology clinic. He noted Mr Kisun’s enthusiasm to undertake rehabilitation and suggested that he should be seen for rehabilitation as an outpatient at the Shoalhaven Hospital.

15    An undated report from Physio Pal would appear to have been produced after this referral. It noted that Mr Kisun had been undertaking in-home physiotherapy as well as hydrotherapy sessions out of home at which his engagement had been excellent. This had resulted in some improvement in his mobility and strength. His identified weaknesses during the program included lower limb weakness, a ‘timed up and go’ outcome measure of 21.36 seconds with a single point stick (which I take to be how long it took Mr Kisun to get up), reduced balance with a history of three falls within the previous 12 months, poor foot clearance and a small shuffling stride.

16    On 18 July 2022 Mrs Kisun undertook an MRI scan which indicated that she had a nodule in her left lung which was highly suspicious for a primary lung cancer.

17    On 20 March 2023 Mr Kisun received a patient care plan from Dr Au at the Meroo St Family Practice at Bomaderry. Amongst other things, this report noted that Mr Kisun had been diagnosed with type 2 diabetes, ischemic heart disease, rheumatoid arthritis, psoriasis, high cholesterol, asthma and insomnia, in addition to his history of open heart surgery. At this stage he was on the following medications: folic acid, Galvumet, methotrexate, metoprolol, mirtazapine, nitrolingual pump spray, temazepam, Ventolin, Vytorin and Zestril.

18    In 20 June 2023 Mr Kisun was served with a court attendance notice in respect of two counts of failing to comply with his reporting requirements under the Child Protection (Offenders Registration) Act 2000 (NSW). These related to the use of a vehicle to which he was not registered and the birth of two grandchildren, both of which occurrences were reportable matters. The charges required him to appear before the Nowra Local Court on 25 July 2023. He retained a solicitor, Mr Walsh, during July 2023 to act for him in relation to these two relatively minor charges. Mr Walsh’s view at this time was that it would be necessary for Mr Kisun to apply to be dealt with under the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) presumably on the basis of a degree of cognitive impairment. In that regard, Mr Walsh says that he had great difficulty at this time in obtaining instructions from Mr Kisun.

19    On or about 12 July 2023 Mr Kisun was seen by a registered nurse for the purposes of an assessment. Her report recorded that Mr Kisun walked with the assistance of a four wheeled walker and that he was extremely hesitant with a shuffling gait. He reported being concerned about the risk of falling and said that the cause of his leg weakness was unknown despite neurological investigation. The nurse recorded that Mr Kisun’s leg muscles were atrophied. He reported extreme fatigue and informed the nurse that he was unable to help his wife with household duties including cooking and cleaning. He was showered four days per week by a care provider, KinCare.

20    The nurse also noted that Mr Kisun reported that he had some ‘STML’ which, as I understand it, refers to short term memory loss. The nurse recorded that he had a RUDAS score of 26/30. The RUDAS is a dementia scale. She reported that this result was not indicative of a cognitive impairment. At this stage, Mr Kisun’s care plan recorded him as receiving three hours of home personal care from his care provider (one hour on Monday, Wednesday and Friday) and three hours of social support (two hours on Thursday and one hour on Monday). The personal care included assistance with eating, drinking, meal preparation, light domestic tasks, mobility, transfers from bed and toileting.

21    On 28 July 2023 Mr Walsh asked a psychiatrist, Dr Nielssen, to prepare a psychiatric report for Mr Kisun. Mr Walsh provided Dr Nielssen with materials relating to Mr Kisun’s medical history (which I have surveyed above). Dr Nielssen interviewed Mr Kisun by telephone at his home on 7 August 2023 and produced a report dated 9 August 2023. During the interview, Mr Kisun raised the effect of the decline in his cognitive function and several family stressors on his state of mind as perhaps forming the basis for having the two reporting charges dealt with under the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

22    As part of the history reported to Dr Nielssen, Mr Kisun told him that he had been diagnosed with a progressive neurological disorder following his heart surgery and this condition left him weakened on the left side. Indeed, Mr Kisun reported this as his main problem. As I have explained above, this is not what was found so far as I can see. The report of Dr Maamary was that Mr Kisun’s general weakness did not appear to be the result of any neurological condition but was likely related to blood abnormalities and deconditioning.

23    Mr Kisun also reported memory loss problems in a manner which is consistent with the memory problems outlined above. On the other hand, it is plain from his medical history that Mr Kisun does suffer from the weakness on his left side which he ascribes inaccurately to a neurological condition. Mr Kisun also told Dr Nielssen that he had moved to Australia in 1965 whereafter he had been a Marist Brother. He had left the order after four years and subsequently had taught in a Catholic school in Canberra for 10 years and at a primary school at Merrylands for 19 years. He also told Dr Nielssen that he had taught in the Northern Territory for a year. He did not tell Dr Nielssen that he had taught at a Marist Brothers School in Wellington in the late 1960s and early 1970s.

24    Mrs Kisun told Dr Nielssen that Mr Kisun’s mother had developed dementia at a similar age and had gone downhill fast. She also reported that he became confused when the phone rang, had lost his keys, was repetitive in conversation and mixed up both their daughters and their grandchildren. She thought that the proceedings in respect of the two reporting offences had had an adverse effect on his health and mental health.

25    Dr Nielssen was unable to assess Mr Kisun’s neurological condition apart from his communication since the interview was conducted by phone. He diagnosed Mr Kisun with mild cognitive impairment and depressive illness. The depression diagnosis followed on, inter alia, from the fact that he had been diagnosed with depression after his 2018 conviction. Dr Nielssen noted that early dementia is often accompanied by depression but also that depressive illness is associated with impaired cognitive function, especially in the elderly. He recommended that Mr Kisun continue with his current treatment plan and opined that his depressive illness and cognitive impairment were both a mental impairment and a cognitive impairment under ss 4 and 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

26    Following his interview with Dr Nielssen on 7 August 2023 it appears that Mr Kisun was seen by Dr Thapaliya on 8 August 2023 at Shoalhaven Hospital. Dr Thapaliya is a rehabilitation physician. Dr Thapaliya wrote to Mr Kisun’s general practitioner on 8 August 2023 reporting on his examination. He stated that Mr Kisun’s short term memory and other areas had declined. He requested an MRI scan and recommended that Mr Kisun obtain a geriatric assessment. Dr Thapaliya made no mention of vascular dementia.

27    Following this Mr Kisun undertook an MRI scan on 30 August 2023 as a result of which a report by a radiologist was issued dated 31 August 2023. The notes to the report suggest that it was undertaken to rule out a cerebral vascular accident (i.e. a stroke) or other pathology and to consider cognitive impairment, which is consistent with Dr Thapaliya’s letter of 8 August 2023. The radiologist concluded that a cause for Mr Kisun’s presentation could not be determined. It noted that:

There are a few scattered T2/FLAIR cerebral hemisphere white matter hyperintensities, not unexpected in a patient of this age, within normal limits.

28    According to Mrs Kisun, Mr Kisun was subsequently to see Dr Thapaliya about the results of the MRI scan. This is consistent with Dr Thapaliya’s letter of 8 August 2023 which said that he would review Mr Kisun after the MRI scan was obtained.

29    On 4 September 2023 Mr Kisun was seen in his home by a registered nurse from KinCare for a follow up. She produced a report on 12 September 2023. I return to this report shortly but for present purposes it suffices to note that the nurse reported that she had attended on Mr Kisun because he had received a diagnosis of dementia. So far as I can see this is the first reference to such a diagnosis.

30    I will turn to the position of another psychiatrist, Dr Roberts, shortly. However, at this point it is useful to note that Dr Roberts was told by Mr Walsh that about a week before 15 September 2023 (i.e. on or about 8 September 2023) Mr Kisun had been diagnosed with vascular dementia by Dr Thapaliya of Shoalhaven Hospital. Since it would appear that Mr Kisun had told the registered nurse that he had been diagnosed with vascular dementia on 4 September 2023 a more likely chronology is that the diagnosis, if it happened, happened before 4 September 2023. From a subsequent affidavit sworn by Mr Walsh it is clear that Mr Kisun received the diagnosis, if in fact there was such a diagnosis, with his wife. This suggests a meeting between Mr and Mrs Kisun and Dr Thapaliya sometime before 4 September 2023.

31    The medical records for Shoalhaven Hospital show that Dr Thapaliya only met with Mr Kisun on 8 August 2023 and did not, at that time, diagnose him with vascular dementia.

32    On 12 September 2023 KinCare produced a report prepared by its registered nurse, as mentioned above. The nurse reported that Mr Kisun had received a diagnosis of dementia. She reported his ongoing leg weakness noting that its cause, which had not previously been known, was ‘now thought to be a sign of vascular dementia, which was recently diagnosed by a neurologist at Nowra hospital’. Dr Thapaliya is not a neurologist. She says that she discussed the diagnosis of vascular dementia with Mr Kisun who ‘seemed to find it difficult to express himself, he said he had been distressed by the diagnosis but seemed very emotionally blunted’. The nurse referred the family to Dementia Australia. Mr Kisun said that he was very interested in undertaking the RUDAS test again. Although it is possible that Mr Kisun’s enthusiasm for the RUDAS test derived from the nurse having mentioned the possibility of his obtaining a dementia supplement (i.e. benefit), on balance, I consider it more likely in light of his earlier conversation with Dr Roberts that he thought it would assist him in relation to the reporting charges. In any event, and in either case, this episode shows that Mr Kisun’s cognitive difficulties as at 4 September 2023 were not such as to prevent him grasping accurately either the forensic or financial benefits of undergoing a further RUDAS test.

33    Events then took an unexpected course. On 12 September 2023 Mr Kisun was arrested on the charges to which this proceeding relates and taken into custody. Mr Walsh was unable to appear on that day and the matter was adjourned to the following day. On or about the same day, Mrs Kisun and her daughter went to the Shoalhaven Hospital to speak with Dr Thapaliya but they were told by a secretary that there was nothing they could do from their end and that the matter was being handled by the hospital’s legal department. So much appears from the daughter’s affidavit. She does not identify the day on which this occurred. While Mr Walsh’s affidavit indicates that he was informed of this visit on 22 September 2023, as will become apparent, contact was made by someone with Dr Thapaliya in relation to Mr Kisun on 13 September 2023 (precisely who made contact is unclear). That makes it unlikely that this visit occurred after 13 September 2023 and correspondingly likely either that the ‘22’ in Mr Walsh’s affidavit is a typographical error intended to be ‘12’ or that Mr Walsh was only informed of the visit 10 days after the fact. Because of the hospital records, to which I will come, I conclude that on the day Mr Kisun was arrested Mrs Kisun and her daughter went to Shoalhaven Hospital to speak to Dr Thapaliya but were unsuccessful in doing so.

34    Early on the morning of the day Mr Kisun was to be brought before the magistrate following his arrest (13 September 2023) Mr Walsh went to Mr Kisun’s home and spoke with Mrs Kisun and her daughter. During this conversation Mrs Kisun informed Mr Walsh that Mr Kisun had recently been diagnosed with vascular dementia by Dr Thapaliya. Mr Walsh then rang Dr Thapaliya. According to Mr Walsh, Dr Thapaliya told him that he had a lot of public patients but recalled Mr Kisun and that he had recently diagnosed him with vascular dementia. Mr Walsh indicated that he would send him a letter asking for a report but that Dr Thapaliya said he might not have time to provide it. This is evidence of a diagnosis by Dr Thapaliya of vascular dementia that does not originate with Mr Kisun or Mrs Kisun.

35    The records of Shoalhaven Hospital have a file note by Dr Thapaliya of this conversation. It is in these terms:

Phone Call Update

Received a phone call allegedly from his daughter reporting that Mr Kisun is very unwell since this morning. No details of nature of the medical issues.

However, she handed the phone to a person by the name of Mr Walsh claiming to be his lawyer who was attempting to explain some legal issues and trying to learn Mr Kisun’s past and present medical conditions including the result of the MRI. Owing to patient’s confidentiality, I politely declined to provide any details and strongly advised that Mr Kisun has to go to the emergency as soon as possible if he is unwell.

On medical note – MRI which was carried out on 31/8/2023 – nil acute changes, no acute infarct or haemorrhage, age-related white matter changes.

Will discuss on next rehab review

36    This is quite inconsistent with Mr Walsh’s account of the conversation. At the hearing, it was submitted by New Zealand that the inconsistencies between Mr Walsh’s account of this conversation and the absence of any reference to a diagnosis of vascular dementia in the hospital’s records could be put down to a degree of confusion and chaos on the morning of 13 September 2023. Mr Walsh then sought to tender his file note of the conversation (which I marked as MFI-1) to rebut any suggestion of confusion. Mr Walsh’s file note records this:

13th September 2023

…

Contact with David Kisun

I was able to speak at 8:30am to Dr Ravi Thapaliya, rehabilitation specialist of Shoalhaven District Hospital. I told him that I was acting for Mr Kisun and explained the circumstances. The doctor was a bit shocked. He told me that the client had now been diagnosed with vascular dementia, and that if he was feeling unwell, he should attend hospital.

37    I agree with Mr Walsh that this shows that his account is not the result of confusion on his part. There is therefore a direct inconsistency between Dr Thapaliya’s note that he did not disclose any confidential patient information to Mr Walsh and Mr Walsh’s evidence that Dr Thapaliya said that he had diagnosed Mr Kisun with vascular dementia.

38    In the present hearing, Mr Kisun did not call Dr Thapaliya and Mr Walsh was not cross-examined. Mr Walsh’s evidence of what Dr Thapaliya said during the telephone call is hearsay to which New Zealand objected. I uphold this objection. It was evidence of words said out of court by a person not called as a witness being led to prove the truth of the reported statement. No relevant exception to the hearsay rule was invoked and, for my part, I can see none. I therefore reject as hearsay Mr Walsh’s evidence about his conversation with Dr Thapaliya.

39    Mr Walsh’s file note of the conversation could be relevant in two different ways. First, it is evidence of what Dr Thapaliya said to Mr Walsh. On this basis, the part of the note recording the conversation with Dr Thapaliya is hearsay for the same reason that Mr Walsh’s direct evidence of that conversation is hearsay. Secondly, had Mr Walsh’s file note been admitted into evidence it would have had a secondary relevance: to rebut New Zealand’s submission that Mr Walsh’s recollection of events was in error due to the chaotic state of affairs on the morning of 13 September 2023. I accept that if Mr Walsh’s direct evidence had been admitted then the file note would have been admissible for this purpose. However, since Mr Walsh’s evidence has not been admitted this second use of the file note is not relevant as the quality of Mr Walsh’s evidence is not in issue. I therefore conclude that to the extent that the file note records Dr Thapaliya’s diagnosis it is not admissible and I reject the tender of that part of the file note. It was not suggested that the balance of the file note was relevant to any issue in dispute and it follows that it is not admissible since it is not relevant. I therefore reject the tender of the whole file note. MFI-1 will not be received into evidence.

40    That conclusion makes it unnecessary to resolve the apparent inconsistency between what Dr Thapaliya’s medical notes and the hospital records show and what Mr Walsh says Dr Thapaliya told him.

41    Following his early morning visit to Mr and Mrs Kisun’s home on 13 September 2023 Mr Walsh then went to the cells at the Nowra Local Court where he met with Mr Kisun shortly before Court. He asked Mr Kisun a series of question (of which he took notes). It was Mr Walsh’s view that Mr Kisun was cognitively impaired. On 13 September 2023 the matter was adjourned to 25 September 2023.

42    According to Mr Kisun’s daughter, on 13 September 2023 Dr Thapaliya advised that Mr Kisun should present to a hospital emergency department if he were to feel any pain or discomfort. To whom this advice was proffered is unclear. The fact of the statement is, however, recorded in an email sent by her to Mr Walsh dated 4 October 2023. This statement precisely matches the statement which appears in Dr Thapaliya’s file note of the same conversation. I infer that this discussion with Dr Thapaliya took place by telephone at Mr Kisun’s home early on the morning of 13 September 2023 during Mr Walsh’s visit before court. It does not appear to me to matter that the identity of Dr Thapaliya’s interlocutor is not revealed by the evidence. It could have been Mrs Kisun or her daughter or Mr Walsh.

43    On 19 September 2023 Mr Kisun was examined by means of teleconsultation by the psychiatrist to whom I have already referred above, Dr Roberts, at the Nowra correctional facility where by then he was being held. During the interview, Mr Kisun told Dr Roberts that he was weak on the right hand side of his body which he believed had been caused by a minor stroke following his heart surgery. None of the medical materials in evidence provide any support for the occurrence of a stroke resulting in such a condition following his heart surgery.

44    Mr Kisun also volunteered that he had been diagnosed with vascular dementia at Nowra Hospital. As I have explained, there is no admissible evidence for any such diagnosis.

45    During the interview, Mr Kisun gave answers which indicated he did not know where he was, what his legal situation was or who Mr Walsh was. Dr Roberts produced a report dated 20 September 2023. Dr Roberts noted the diagnosis of vascular dementia by Dr Thapaliya on or around 8 September 2023 but also expressed the view that the MRI report prepared by the radiologist dated 31 August 2023 did not provide direct evidence of the cause of the diagnosis of vascular dementia. In this regard, Dr Roberts was plainly correct.

46    On the other hand, Dr Roberts noted that dementia may be present in the absence of MRI pathology. Dr Roberts’ opinion based on Mr Kisun’s responses to him was that he was ‘profoundly cognitively impaired’ and would not be fit to stand trial.

47    Dr Roberts also noted that the report of Mr Kisun’s conversation recorded in the KinCare report of 12 September 2023 suggested that ‘the quality of the discussion appears to have been better than Mr Kisun presented to me’. Of this anomaly Dr Roberts expressed this view:

I would consider that this raises the question as to whether deterioration of a rapid nature is occurring and would consider that since this apparent deterioration has taken place, it would on reasonable medical psychiatric grounds, appropriate to transfer Mr Kisun to a Teaching Hospital where a full gambit of specialists and assessments can be undertaken.

48    On 20 September 2023 Mr Walsh called Mr Kisun by phone at the Nowra Correctional Centre and spoke with him. He kept notes of this conversation. It was his view based on this conversation that Mr Kisun was not fit to be tried. I have reviewed these notes which I take to be accurate. They certainly show that the answers that Mr Kisun gave to Mr Walsh were indicative of Mr Kisun being confused. Mr Walsh prepared an affidavit dated 20 September 2023 annexing these materials and providing background to them.

49    On 22 September 2023 Mr Walsh sent an email to KinCare in which he indicated that Mr Kisun was being held in the clinic at the Nowra Correctional Centre.

50    On 25 September 2023 Mr Walsh appeared for Mr Kisun in relation to the two charges of failing to comply with reporting conditions. Both charges were dismissed under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Mr Kisun’s bail application under the Extradition Act was adjourned to 27 October 2023.

51    On 1 October 2023 Mr Kisun’s daughter visited him at the Nowra Correctional Centre. According to her he was expressionless and she thought that he did not know where he was or what was happening to him.

52    On 5 October 2023 Mr Kisun was interviewed by Dr Nielssen by audiovisual link. He produced a report dated 6 October 2023. He was provided with Dr Roberts’ report, the MRI, Mr Walsh’s affidavit of 20 September 2023 and documents related to Mr Kisun’s arrest and the extradition request. Dr Nielssen diagnosed Mr Kisun with depressive illness and cognitive impairment. The cognitive impairment was secondary to a neurodegenerative disorder, the effects of other medical conditions and his heart surgery. It will be recalled from above that the nature of this neurodegenerative disorder has never been diagnosed. Dr Nielssen expressed this opinion:

Given what seems to be a dramatic decline in his mental function in the two months since the last assessment, the explanation for his recent presentation is almost certainly a psychological reaction to his situation on a background of failing cognitive function. The alternative explanation is a new acute event, such as a stroke, or the rapid progress of his condition in combination with sensory deprivation and anxiety.

53    It will thus be seen that Dr Nielssen thought that there were two possible causes of the cognitive impairment: a reaction to Mr Kisun’s recent incarceration or perhaps an acute event such as a stroke. Dr Nielssen opined that Mr Kisun was unfit to be tried.

54    According to Mr Kisun’s daughter, sometime before 6 October 2023 Mr Kisun was transferred from the clinic into the main section of the prison, known as ‘the pod’.

55    A summons was served on Dr Thapilaya on 9 October 2023 at the request of Mr Walsh under the auspices of r 4 of the Extradition Regulations 1988 (Cth). An email from the First Respondent’s solicitor to Mr Walsh of 10 October 2023 indicates that this was a summons to produce documents. The summons was returnable in the subpoena list on 13 October 2023.

56    A hearing took place before the magistrate on 27 October 2023. The proceeding before the magistrate was administrative in nature so that the rules of evidence did not apply. There was no occasion therefore for New Zealand to make a hearsay objection about the alleged diagnosis by Dr Thapaliya of vascular dementia.

57    Mr Walsh appeared for Mr Kisun and called both Dr Nielssen and Dr Roberts to give evidence. Their evidence was given remotely by audio-visual link. It is apparent that before the magistrate the issue of whether Mr Kisun had vascular dementia was hotly contested. At the hearing Mr Muir of counsel, for New Zealand, explicitly made the submission that Mr Kisun might be exaggerating or fabricating his cognitive impairment.

58    When Dr Roberts was called in that proceeding two of his reports were tendered. I have not mentioned his second report which is of no moment. In his evidence in chief Dr Roberts gave evidence that Mr Kisun was profoundly cognitively impaired and that he was ‘in the wrong place from the medical psychiatric viewpoint’. He felt that Mr Kisun should be in a teaching hospital or some similar facility where he could undergo comprehensive assessment by senior specialists. Dr Roberts’ opinion was that a final diagnosis had ‘not been established’. Nevertheless, he felt the prognosis was negative. Dr Roberts was asked whether it was possible that Mr Kisun’s disorder was fictitious. He accepted this was possible although he felt it was improbable.

59    Under cross-examination Dr Roberts testified that the normal MRI scan did not exclude a diagnosis of dementia. He gave evidence that he had not been provided with a diagnosis from another medical practitioner that Mr Kisun had dementia. He also gave evidence that based on his presentation the dementia Mr Kisun had was advanced. He thought that Mr Kisun had a number of risk factors for dementia including heart surgery and type 2 diabetes. He testified that Mr Kisun suffered from a presentation consistent with severe dementia. However, he was unable to make a diagnosis and his view was a provisional diagnosis. This was because the necessary tests had not been performed. He did think that depression could exacerbate the effects of cognitive impairment. I interpolate that one may infer as a matter of commonsense that the circumstances in which Mr Kisun by then found himself would be apt to engender deep depression.

60    Dr Nielssen gave evidence after Dr Roberts. He confirmed his opinions in his reports. Dr Nielssen disagreed with the radiologist’s report on the production of the MRI scan and thought that the white matter hyperintensities were not within normal limits at all. He thought it showed cerebral vascular disease. He thought the difference between the first and second times he interviewed Mr Kisun showed a rapid progression of his cognitive decline. He felt this was caused by a combination of a neurodegenerative disorder of some aetiology together with the shock of being in prison for a man of his age and infirmity.

61    Mr Walsh asked Dr Nielssen what the effect of putting Mr Kisun on a plane back to New Zealand would be. Although the transcript is a little unclear I am prepared to infer that Dr Nielssen’s response indicated that he considered it would be negative. Dr Nielssen thought it was extremely inappropriate and traumatic that Mr Kisun was in custody given his condition. Dr Nielssen was asked about whether Mr Kisun could be making up his symptoms. He gave this answer:

Yeah look it’s possible, but the way I interpreted it when I spoke to him was that as a confused man who knew he was in some kind of pickle and didn’t show any judgment in the kind of questions he couldn’t answer, that’s how I saw it. It’s called Ganser syndrome which is where, you know, you say how many legs on a horse, the person says five knowing full well there is four, you know, that’s the kind of answers. But the underlying cause is confusion, and the underlying cause of the confusion is well documented brain disease. So even if there was an exaggeration, exaggeration was of a poorly judged and confused form.

62    On cross-examination Dr Nielssen said that he would diagnose Mr Kisun with vascular dementia. He accepted that his cognitive decline could be accelerated by his depression on incarceration.

63    The magistrate determined on 2 November 2023 that Mr Kisun should be surrendered to New Zealand. The critical part of his Honour’s reasons was as follows:

So we return to the issue of what is oppressive. With a sense of irony I venture the comment that Kisun’s cognitive impairment might result in no oppression to him if he lacks understanding of his surroundings but to that extent it would be appropriate to take an objective rather than subjective view. In that sense, what I am trying to say there is that this Court has to determine whether there is an unacceptable level of oppression visiting on a person who is unable to necessarily comprehend the process to which he is subject.

I have already made the point that extradition is inherently oppressive. The question is whether the level of oppression is sufficient to refuse the application. With the greatest respect to Mr Walsh I do not accept that granting an application would be catastrophic for Kisun. To that extent I accept that there is apparently considerable damage done by the process of arrest and incarceration but that has happened and we cannot turn the clock back on that.

The medical evidence is indicative of a decline in Kisun’s physical and cognitive health prior to his arrest but it is open to the Court to find that his arrest and incarceration have exposed or unmasked what was already present.

THIS COURT FINDS THAT WHILST SURRENDER HAS ELEMENTS OF BEING OPPRESSIVE AN ORDER SHOULD BE MADE FOR A WARRANT FOR KISUN TO BE SURRENDERED TO NEW ZEALAND. IT IS FOR THAT JURISDICTION TO DETERMINE HOW THE CHARGES AGAINST KISUN SHOULD BE RESOLVED.

64    Review proceedings were commenced in this Court on 6 November 2023. By 23 November 2023 it is clear that Mr Walsh was making determined efforts to have Mr Kisun examined by a neurologist and to have a further MRI scan performed. Due to constraints associated with Mr Kisun’s detention, these efforts were not successful.

65    On 7 December 2023 I heard Mr Kisun’s bail application which I refused on 12 December 2023 on the grounds that there were no ‘special circumstances’ as was required to obtain bail in an extradition case: Kisun v New Zealand [2023] FCA 1576. In short, Mr Kisun was in the same situation as persons facing historical charges of child sex offending often are: old and frail.

66    Following that decision Mr Walsh continued his attempts to have Mr Kisun examined. Ultimately he was interviewed again by Dr Nielssen by audio-visual link on 20 December 2023. He produced a report the same day. At the hearing, this report was received but Dr Nielssen was not required for cross-examination.

67    Dr Nielssen expressed this opinion:

Mr Kisun’s presentation in the further interview confirm that he has a significant degree of cognitive impairment. The records provided indicate that he has not received an adequate standard of assessment or care in prison, and it seems that much of his physical care is provided by his cellmate.

I confirm the opinion expressed in previous reports that Mr Kisun should have access to expert medical assessment. Justice Health aims to provide a standard of care that is equivalent to the care provided in the community, and that standard is often achieved, as for many prisoners the only routine dental and medical care they receive is in prison. However, for elderly prisoners, and for prisoners with complex medical needs, the standard of care that is available is way below that available in the community, which is evident in the case of Mr Kisun.

With regards to your question about the effect of imprisonment and being transferred and deported on Mr Kisun’s physical and mental health, being removed from his familiar routine, and being placed in the sensory deprivation of prison has had a very adverse effect on his mental health. His high level of distress appears to have had an adverse effect on his cognitive function, which was already quite impaired prior to coming into custody, secondary to his progressive neurological disorder and the effect of complicated open heart surgery in 2021. Transfer to another prison in which he may not have a sympathetic cellmate to act as a carer, and being deported to another prison system, would be expected to have a further adverse effect on his mental health. The lack of access to medical care would be expected to shorten his already limited life expectancy.

I confirm the opinion that Mr Kisun’s detention in prison is inhumane and unnecessarily punitive, and is also illogical, given that he is not a danger to the community or a flight risk. The need for further assessment of his complex medical condition and for an adequate standard of physical care amounts to “special circumstances”.

Findings on Mr Kisun’s deficits

Vascular dementia

68    As I have said, I uphold New Zealand’s hearsay objection to the diagnosis of vascular dementia by Dr Thapaliya. However, Dr Nielssen also gave evidence before the magistrate that Mr Kisun had vascular dementia. This is inconsistent with the radiology report which says that the hyperintensity white matter was consistent with the normal range in a man of Mr Kisun’s age and with Dr Roberts’ evidence that the MRI did not demonstrate vascular dementia (although this did not mean that dementia was not present).

69    There are real difficulties about determining the answer to the question of whether Mr Kisun has vascular dementia on the state of the evidence. Plainly, much more by way of investigation could be done but that observation provides no guidance on how I am to wrangle the material which has been admitted on this application.

70    Although Dr Nielssen was clear before the magistrate that the MRI did show vascular dementia the radiologist who produced the report held no such opinion. In that regard, the radiologist was supported by Dr Roberts. I think the better view on the evidence is that the only MRI of Mr Kisun’s brain which is available does not show vascular dementia although I accept Dr Roberts’ evidence that this does not necessarily exclude a diagnosis of vascular dementia.

71    There is evidence therefore in both directions. Ultimately, the fact is that Dr Nielssen has never met Mr Kisun or seen an image of his brain which shows signs of vascular dementia. I accept that there are circumstances, such as his prior history of heart disease and type 2 diabetes which certainly make vascular dementia more likely.

72    I entertain genuine concern that Mr Kisun may well have vascular dementia. However, in resolving the issue it is Mr Kisun, or more accurately those who appear for him, who must prove that he does. This must be done at the civil standard of proof. I must therefore be satisfied on the balance of probabilities that Mr Kisun has vascular dementia. It is not enough for me to think that he might have vascular dementia or to harbour real concerns that he might. What the law requires is that I be affirmatively satisfied that he does have vascular dementia. That, in turn, requires an actual belief on my part to that effect. Whilst I entertain genuine concerns that he may well have vascular dementia, I am unable to convert those doubts into an actual state of affirmative satisfaction. I therefore conclude that it has not been shown that Mr Kisun has vascular dementia.

Significant cognitive impairment after 12 September 2023

73    The evidence of Dr Roberts also shows that Mr Kisun has a condition which relates to cognition but that to determine what it is it would be necessary for Mr Kisun to be examined more closely by specialists. His opinion is that Mr Kisun is profoundly cognitively impaired. The evidence of Dr Nielssen is that he was as at 20 December 2023 significantly cognitively impaired.

74    Both Dr Nielssen and Dr Roberts thought that Mr Kisun was not making up his symptoms. Dr Roberts conceded that it was possible but that he did not think that this was what had happened. As I have explained above, there is material from which I could conclude that at least in the period prior to 4 September 2023 Mr Kisun was to some degree focussed on seeking to demonstrate that he was cognitively impaired for the purpose of meeting the two charges relating to his reporting conditions.

75    This does not alter my conclusions about his condition after 12 September 2023. Each of Dr Roberts and Dr Nielssen was provided with the same material I have considered and indeed Dr Roberts adverted to the fact that Mr Kisun seems to have given clearer answers to the registered nurse on 4 September 2023, i.e., before his arrest on 12 September 2023. Further, Dr Nielssen’s first assessment of Mr Kisun before his arrest was that he was suffering from a milder form of cognitive impairment than is now the case.

76    The critical question is whether the arrest on 12 September 2023 has had a significant impact on Mr Kisun’s cognitive health. Both Dr Roberts and Dr Nielssen say that it has and that they do not think that he is confabulating.

77    Against those two expert opinions that Mr Kisun is not confabulating are these matters:

(a)    Mr Kisun has a motive to confabulate.

(b)    The suggested diagnosis by Dr Thapaliya of vascular dementia appears to have emerged from Mr and Mrs Kisun but is not borne out by the hospital records. Further, their description of Dr Thapaliya as a neurologist is wrong.

(c)    Mr Kisun has inaccurately suggested that Dr Maamary had diagnosed him with a neurological condition when this is not the case.

78    These three matters provide material from which one could infer that Mr Kisun exaggerated his symptoms when interviewed by Dr Roberts and Dr Nielssen. To that one might add that the circumstances of each interview – by phone or audio-visual link – might be expected to impact upon the precision of their opinions on Mr Kisun’s confabulation. On the other hand, both Dr Roberts and Dr Nielssen are experienced psychiatrists and it may be reasonably inferred that they would be alert to this.

79    Dr Nielssen was not cross-examined in this Court on his fresh report though he could have been. It was not put to him that his opinion that Mr Kisun was not confabulating was wrong.

80    Whilst I accept there is some possibility that Mr Kisun may be confabulating, on balance, I am not persuaded that he is. The fact of his incarceration from 12 September 2023 and the pall of circumstances which now hang over him would make him very depressed. The evidence of Dr Roberts and Dr Nielssen supports the proposition that depression may exacerbate cognitive impairment. I therefore accept the evidence of Dr Roberts and Dr Nielssen about Mr Kisun’s profound or significant cognitive impairment following his arrest.

81    Having accepted that evidence, the only evidence before me is that Mr Kisun is profoundly or significantly cognitively impaired and impaired to the extent that if the question were whether he could stand trial in New South Wales, the answer would be no.

Other conditions

82    Mr Kisun has type 2 diabetes, psoriasis and the long term effects of having had quadruple bypass surgery. He is frail and unable to walk safely without a frame. He is not able to look after himself. At the moment he is partially dependent for his care on his cell mate who looks after him.

Effects of extradition

83    Dr Nielssen also gave evidence that being transferred by plane to New Zealand would not be good for Mr Kisun’s mental health. I accept this evidence. The experience will be confusing and stressful for him and hence likely to cause some deterioration in his mental health.

84    There then arises the question of what will happen to Mr Kisun once he arrives in New Zealand.

85    There seem to me to be two possibilities. Either he will be granted bail or he will not.

Bail refused

86    About the effect of this possibility there is no evidence apart from Dr Nielssen’s opinion that it would not be good for Mr Kisun. More precisely, Dr Nielssen gave evidence in his report of 20 December 2023, on which he was not cross-examined, that if Mr Kisun were extradited to New Zealand it would: (a) have a further adverse effect on his mental health; and (b) shorten his life.

87    The basis of the opinion in (a) was that Mr Kisun might not have the assistance of a sympathetic cellmate (as he does in Nowra) to assist in his care and that the transfer to a different prison system would in itself have an adverse impact on his mental health.

88    I do not propose to act on the evidence about the cellmate. There is no evidence before me about how New Zealand deals with remand prisoners with Mr Kisun’s constellation of needs or how they are housed. On the other hand, I am prepared to act on Dr Nielssen’s opinion that a transfer to a different prison system is likely to have an adverse impact on Mr Kisun’s mental health. This is really just a reiteration of his earlier evidence that changing Mr Kisun’s surrounds is likely to be bewildering for him and hence likely to impact on his mental health. However, beyond that I cannot go since there is no evidence about how New Zealand deals with elderly remand prisoners.

89    I do not propose to act on Dr Nielssen’s opinion that the transfer will shorten Mr Kisun’s life. This opinion rests upon assumptions about how the New Zealand authorities deal with remand prisoners with Mr Kisun’s conditions. As I have said, there is no evidence about this before me.

Bail granted

90    In this scenario, a question would arise as to how Mr Kisun will look after himself. I am abundantly satisfied that Mr Kisun cannot look after himself and that if his family cannot relocate to New Zealand to assist him, the consequences for him are likely to be dire. Whether a New Zealand court would admit someone to bail if that were the consequence is unclear to me.

91    On the other hand, the evidence that his family cares for him is undeniable and I infer that in this situation they would endeavour to continue doing so as far as possible. Mr Kisun’s immediate family consists of his wife and his two daughters. His older daughter lives in Orange with her fiancé. She suffered a work-related injury to her cervical spine in 2020 and she has difficulties with stairs. In May 2023 she gave birth to twins. It is evident that the older daughter has been providing a lot of support to Mr Kisun. I think it would be very difficult for the older daughter to relocate to New Zealand to look after her father. She has two young children in Orange to look after. In order to move to New Zealand to look after her father she would need to make arrangements for the children to be looked after for the very many months Mr Kisun is awaiting trial or to bring them to New Zealand.

92    Mr Kisun’s younger daughter lives in Parkes with her four children under circumstances of some difficulty including financial difficulty. This daughter has been prevented by her circumstances from providing as much care as her sister although it is evident that she wishes to help and is well disposed towards her father.

93    Mrs Kisun was diagnosed with lung cancer in October 2022 although appears to have recovered. She is 65 years old. She currently works as a sterilising technician at a private hospital in Westmead. In order to look after Mr Kisun, she would need to stop working.

94    As to Mr Kisun’s financial position, Mr Walsh’s evidence was that Mr Kisun depends on a Commonwealth benefit and has no other financial resources. Mrs Kisun owns the house at Bomaderry.

95    In order to care for Mr Kisun, it will be necessary for the family to move someone to New Zealand. It will also be necessary to obtain accommodation which will cost money. I do not consider that the younger daughter will be able to assist. For Mrs Kisun or her older daughter to help Mr Kisun in this situation would be, in my view, extremely difficult and burdensome for them. However, having regard to their family relations, I do not think they will abandon him and I therefore find that his surrender will place them under very significant strain if he is admitted to bail.

Conclusions on the effects of extradition

96    I make these findings:

(a)    Removal from Australia to New Zealand by plane is likely to worsen Mr Kisun’s mental condition. I would rate this effect, however, as relatively minor since the flight is only a couple of hours.

(b)    If Mr Kisun is refused bail, his transfer to the New Zealand prison system is likely to worsen his cognitive impairment.

(c)    If Mr Kisun is admitted to bail, either he will be unable to look after himself or great strain will be placed on his family in relocating to New Zealand to look after him.

Delay

97    Mr Kisun is charged with 11 counts of committing an indecent act with a boy under the age of 16 contrary to s 140(1)(b) of the Crimes Act 1961 (NZ) . Five counts relate to Victim A and six to Victim B. The two alleged victims were boys attending the Marist Brothers Newtown School in Wellington at which Mr Kisun was both a Marist Brother and a teacher. The school catered for boys from grade three to six. Mr Kisun was Victim A’s main teacher for one year during the period of the charges and likewise for Victim B. It is not necessary to detail the 11 charges against him. The offences charged are very serious.

98    In 1999, Victim A informed the New Zealand Catholic Church Archdiocesan Protocol Committee that he had been abused by Mr Kisun. Victim A did not approach the police until April 2017 when he wrote a letter to them enclosing a handwritten letter he had penned in 2006. A file was opened by Detective Sergeant Warren in May 2017.

99    There is a team of police in the Wellington area who investigate matters involving abuse against children. As a matter of work allocation, this team directs its principal focus to children who are currently at risk. Accordingly, if the offences are historical, while a file is opened, the investigation is only advanced as far as time permits working around investigations of children who are still at risk.

100    Victim A was formally interviewed on 22 June 2017. He gave an account of having been repeatedly sexually abused by Mr Kisun. Detective Sergeant Warren then interviewed other former students of the school. As a result of this she identified Victim B as another possible victim.

101    In August 2017, Detective Sergeant Warren contacted Sergeant David Williams of the ACT Police. He was the officer in charge of the prosecution of Mr Kisun on child sex offences in the ACT Supreme Court.

102    In October 2017, Detective Sergeant Warren began communicating with Victim B and he was formally interviewed on 31 October 2017. In that interview he gave details of regular sexual abuse by Mr Kisun between 1969 and 1971. Detective Sergeant Warren then updated the ACT Police with the fact that Victims A and B had now made formal complaints about Mr Kisun. As a result of this the prosecutors before the ACT Supreme Court obtained agreement from Victims A and B to give tendency evidence in Mr Kisun’s trial before that Court.

103    The trial was due to commence on 30 April 2018. Whilst the trial was pending a decision was made by the New Zealand Police to await the outcome of that trial before determining what to do next. Meanwhile, Detective Sergeant Warren continued making enquiries into potential witnesses as time permitted.

104    In April 2018, the trial was adjourned to 15 October 2018. At this time the New Zealand Police undertook trial preparation work with the two victims and facilitated the giving of their evidence at the trial in Canberra. On 2 November 2018, Mr Kisun was convicted on four charges and acquitted on one. He was sentenced to various terms of imprisonment but these were suspended on his entering into a recognizance to be of good behaviour for three and half years.

105    Following this outcome, Victims A and B indicated their support for the prosecution of Mr Kisun in New Zealand. It is not clear from the evidence when this occurred but I would infer that it had happened by January 2019. This may be inferred because in January 2019 Detective Sergeant Warren changed roles and from that point on was unable to progress the matter any further due to work constraints.

106    At some stage between then and June 2019 it was concluded that there was a prima facie case against Mr Kisun and his extradition should be sought. The investigation file was then forwarded in June 2019 to the File Briefing Team to prepare a report for review by the New Zealand Police Legal Team. The report was to address evidential sufficiency and the appropriate charges to be brought against Mr Kisun. Following the feedback of the New Zealand Police Legal Team and liaison with INTERPOL Wellington regarding extradition requirements, further investigations were carried out and resulted in the identification of 11 charges.

107    In May 2020, legal counsel (Mr Nick Belton) provided written feedback on the matter. Issues were identified with the proposed charges which likely related to the nature of the charges as representative charges and the impact on any extradition proceedings of the Full Court’s decision in Bannister v New Zealand [1999] FCA 362; 86 FCR 417 (‘Bannister’). The charges were then updated and in July 2020 approval was sought from Detective Inspector Sutherland for the extradition of Mr Kisun. In September 2021, he declined to authorise extradition . In the meantime, Detective Sergeant Warren had resigned from the New Zealand Police in December 2020. The file was reassigned to her replacement in October 2021 but no work was done on it because the extradition request had been declined. In May 2022 the file was reassigned to another officer who determined that no work should be done on it (although a border alert was placed on Mr Kisun). I infer from this that the New Zealand Police thought that if Mr Kisun were to return to New Zealand he should be charged. This is consistent with its earlier determination that there was a prima facie case against him.

108    Following further consultation with INTERPOL, an internal review was then conducted in July 2022 of the decision not to extradite. The same officer who had previously declined to authorise extradition now approved it. The file was then reactivated as a result of which it was then referred to the District Crime Manager who approved extradition at the local level. It was then referred to the national level for approval by the Director of Criminal Investigations at Police National Headquarters. Extradition approval was granted in October 2022.

109    On 16 February 2023 the Wellington District Court granted a warrant for Mr Kisun’s arrest but this warrant was withdrawn on 1 September 2023 because it contained an administrative error. Another warrant was issued that day but it too suffered from an administrative error and required amendment. The further amended warrant was issued by the District Court later on 1 September 2023.

110    On 5 September 2023 Detective Senior Sergeant Hamlyn of the New Zealand Police sent a written request to the Australian Federal Police asking them to apply for the indorsement of the arrest warrant for Mr Kisun.

111    From this account several conclusions may be drawn. First, the length of time between the alleged offending and the present is very large. Secondly, the account above shows that Victim A did not come forward until April 2017. By this time, Mr Kisun was before the ACT Supreme Court on bail. Section 38(5) of the Extradition Act provides:

(5)    Where a surrender warrant is issued in respect of a person:

(a)    who is in custody; or

(b)    to whom bail has been granted;

in respect of an offence that is alleged to have been committed, or of which the person has been convicted, in Australia, the warrant shall not be executed before the person has been released from custody in respect of that offence or any recognizances on which the person has been granted bail in respect of that offence have been discharged, as the case requires.

112    The effect of this was that no surrender warrant could be executed whilst Mr Kisun remained on bail. It remained possible for him to be charged in New Zealand, for the warrant to be indorsed in Australia, for Mr Kisun to be arrested under it and for a magistrate to issue the surrender warrant. All that s 38(5) did was prevent any surrender warrant from being executed whilst he remained on bail before being sentenced on 2 November 2018.

113    Thirdly, contrary to New Zealand’s submission, it was entirely possible for any surrender warrant to be executed once Mr Kisun entered into his three recognizances to be of good behaviour on 2 November 2018. The recognizances referred to in s 38(5) are recognizances in respect of bail.

114    Fourthly, I consider it nevertheless reasonable that the New Zealand Police wished to see how the ACT trial went. Both Victims A and B gave tendency evidence at that trial and it was sensible to wait and see how that went.

115    Fifthly, from 2 November 2018 I would describe the progress of the charges as unreasonably slow. By January 2019 the New Zealand Police had sufficient information to form the view that there was a prima facie case against Mr Kisun, and knew that he had been convicted in the ACT on, inter alia, the evidence of Victims A and B and that both victims now approved of a prosecution in New Zealand going ahead. The reason why extradition was not sought from January 2019 related to the formulation of charges which were thought to be suitable for the purpose of seeking extradition from Australia. It took from January 2019 to September 2023 for this problem to be resolved, a period of over four and a half years. Given that Mr Kisun was 72 at the beginning of this period and 78 at the end of it I consider this a substantial delay in the context of a prosecution for historical child sexual abuse offences.

116    Sixthly, on the other hand, it seems that until relatively recently, Mr Kisun was not profoundly cognitively impaired. It is quite likely that his cognitive decline has been accelerated by his arrest under the backed warrant. Both Dr Nielssen and Dr Roberts thought that his recent detention was likely to have made his situation worse but also placed significance on his history of quadruple bypass surgery in June 2021. If Mr Kisun’s extradition had been sought in the period between January 2019 and May 2021 I consider it more likely than not that his arrest and detention would not have caused the rapid decline in his cognition which has resulted in his present condition of being significantly or profoundly cognitively impaired.

117    I therefore conclude that but for the delay in seeking his extradition Mr Kisun would not presently be suffering from the profound or significant cognitive impairment I have found that he is.

118    I do not think that the period between April 2017 – the time when Victim A complained to New Zealand Police – and January 2019 constituted an unreasonable delay. I do however consider the period from January 2019 to September 2023 does constitute a period of delay which, given the subject matter of the charges, the time of the alleged offences and the advanced age of Mr Kisun, is objectively unreasonable.

119    It is not, I accept, a case where the delay has not been explained. But the explanation, whilst understandable in the context of underfunded police forces, does not render the delay acceptable still less reasonable. It is not reasonable in a case of historical child sexual abuse to take four and a half years to formulate charges where the person whose extradition is sought is 72 years old at the beginning of that period. That Mr Kisun’s health should have deteriorated across that period is precisely the kind of occurrence which is foreseeable in cases of this kind.

120    I therefore find that there has been an unreasonable delay of four and a half years which has directly contributed to Mr Kisun being now in the serious condition he is.

Relevant Principles

121    Section 34(2) of the Extradition Act is set out above. The approach to s 34(2) was considered by the Full Court in New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250 (‘Moloney’). The circumstances of that case were similar to this case in some ways. Both cases involve extradition to New Zealand, involve allegations of historical child sexual abuse and raise questions about the significance of prosecutorial delay. The Full Court held in Moloney that the injustice limb in s 34(2) should not be approached by comparing differences between Australian and New Zealand rules of evidence and criminal procedure: [203]. The correct question is whether the person to be extradited will be assured of a fair trial in New Zealand: [205].

122    In that case there had been delay and the principal issue was whether the fact that a Longman direction need not be given in New Zealand but had to, or perhaps could, be given in Australia meant that the trial would be unjust. The Full Court held that whatever the differences between Australian and New Zealand law on this question were, it did not mean that any trial would be unjust: [222] and [224].

123    The decision in Moloney does not mean that it is not, in principle, open to Mr Kisun to contend that it would be unjust for him to be tried in New Zealand for the purposes of s 34(2): Newman v New Zealand [2012] FCAFC 133; 206 FCR 1 (‘Newman’) at [17] and [23]. However, it does mean that, whatever Mr Kisun’s infirmities are, this Court should proceed on the assumption that the judicial system in New Zealand will deal with him justly. Thus for example no relevant injustice to Mr Kisun arises from requiring him to seek a permanent stay of the proceeding in New Zealand. Nor, in the absence of any evidence to that effect, is there any reason to doubt the justness of whatever New Zealand’s approach is to persons who may not be fit to be tried.

124    The present issue, however, is not concerned with the injustice limb of s 34(2). Rather, it is concerned with the oppression limb. I do not think that these two limbs can be considered entirely divorced from each other: see Newman at [21]; Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442 at [41] per Gaudron and Hayne JJ. For example, I would accept that it follows from the assumption that proceedings in New Zealand are not unjust that exposure to the New Zealand justice system in itself is assumed not to constitute oppression for the purposes of the oppression limb in s 34(2). If it is not unjust to expose Mr Kisun to the New Zealand criminal justice system I do not see how it could coherently be said that such exposure could be relevantly oppressive. To reason otherwise would undercut the decision in Moloney.

125    The starting point therefore is the assumption that it is not oppressive for the purposes of s 34(2) to require Mr Kisun to undergo a bail hearing in New Zealand, or to seek a permanent stay on the grounds of the four-and-a-half-year delay in formulating the charges or even to undergo a trial on the indictment or some other process if he be unfit for trial. There is nothing before me to displace that assumption.

126    The question which remains is whether extradition to New Zealand may nevertheless be oppressive for the purposes of s 34(2) for reasons which are entirely unrelated to the fairness of the New Zealand justice system. To give an extreme example, if a person who was to be extradited to New Zealand had, by reason of the delay in seeking extradition, contracted a condition which made it life threatening to travel, I would accept at least in principle that this might satisfy the oppression ground in s 34(2). Here the oppression would not arise from the New Zealand justice system but merely from a circumstance extraneous to the merits of that system.

127    The question then becomes whether Mr Kisun has identified a condition of that genre. I do not think that the confusion and fear which he will undergo en route to New Zealand rises to the necessary level.

128    However, his return to New Zealand will mean that: (a) he suffers further cognitive decline (if bail is refused); (b) if bail is granted, he will be entirely unable to look after himself if his family are not able to move a family member to New Zealand to care for him; or (c) if bail is granted, there will be great strain placed on his family in having to relocate to New Zealand to look after him.

129    I have found the resolution of this issue difficult. The difficulty derives from the fact that neither Mr Kisun’s representatives nor New Zealand have sought to show anything about what his position will be if extradited. I sought further submissions from the parties on the question of bail but I have not found these submissions useful in resolving these issues.

130    I am satisfied that (a) and (b) are both delay-induced species of oppression.

131    I am not satisfied that the strain which would be placed on Mr Kisun’s family by (c) is relevant to the concept of oppression under s 34(2). In Bannister at [34] the Full Court agreed with the view expressed by Green CJ in White v Cassidy (1979) 40 FLR 249 at 255 that hardship or prejudice to the wife and children of a person to be extradited were not directly relevant to oppression although they might be relevant to oppression insofar as ‘they affect his attempts to start a new life’. It may be that the Full Court in Hicks v Martin (1990) 27 FCR 416 at 419 per Morling, French and Lee JJ had expressed a different view:

It was well open to his Honour to reach the conclusion that the hardship which would be occasioned to the appellant if he is returned to New Zealand would not be such as to make it oppressive or too severe a punishment that he be returned to that country. But we do not think it can be said that his Honour would certainly have reached that conclusion even if he had not been of the opinion that the appellant was entitled to rely upon only such hardship as would be occasioned to him by reason of the delay in prosecuting the alleged offence.

On any view of the matter, it was not a clear-cut case. The amount of money involved in the charge (somewhat less than $20,000 in Australian currency) is not insignificant but not great. Both the learned magistrate and Foster J recognised the serious hardship which would be occasioned to the appellant. As his counsel pointed out on the hearing of the appeal, his return to New Zealand would lead to the virtual certain destruction of the profitable business which he has built up in Australia. Moreover, it would be likely to have a catastrophic effect on his family life. It could well be the case that the appellant’s wife would feel obliged to return with him to New Zealand. Since their children could not be left to fend for themselves in Australia, they also would be compelled to return to New Zealand. Yet the appellant’s prospects of being able to support himself, quite apart from his family, in New Zealand are very poor. Even if hardship of this kind is, as his Honour put it, “simply the product of the time which has now elapsed” we think it should have been taken into account.

132    However, I do not think that properly read this is contrary to what was held in Bannister. Having regard to the terms of s 34(2) it seems clear to me that the oppression being contemplated is the oppression of the person being extradited. I would accept, as Green CJ would have accepted, that sometimes oppression of the family may indirectly result in oppression of the person being extradited. Assuming that to be so, I do not think the oppression I have described as being likely to be suffered by Mr Kisun’s family can meet that description.

133    The situation then is that scenarios (a) and (b) involve oppression within the meaning of s 34(2) but scenario (c) does not. Has Mr Kisun proven that he will suffer oppression if he is extradited? The difficulty which now arises is the absence of evidence about this issue. Its absence leaves open two lines of reasoning.

134    The first, which is elaborate, would be that it is open to conclude that between them (a)-(c) represent the universe of outcomes. In the absence of evidence suggesting one way or the other that any of them is more or less likely than the others, I could infer that they are equally likely. If so, then it would follow that (a) and (b) were together more likely than (c). From this I could infer that (a) and (b) were, between them, more likely than not. Since both (a) and (b) result in an outcome which is oppressive within the meaning of s 34(2) it would follow that I could be satisfied on the balance of probabilities that Mr Kisun would suffer oppression resulting from the delay.

135    The second line of reasoning, which is less elaborate, is that Mr Kisun’s representatives have failed to prove what Mr Kisun’s position in New Zealand will be. This view dismisses the first view as essentially an act of prestidigitation; one which summons a case out of thin air; and, one which is based on dubious assertions about the probability of essentially unknown events. It would also take aim at the assumption that (a), (b) and (c) in fact represent the true universe of possibilities and underscore that the difficulties in demarcating the universe of possibilities stems from the absence of evidence.

136    Whilst the first line of reasoning has in its outcome some attraction, I am reluctantly persuaded that it is the second line of reasoning which is in fact correct. I am thus unable to conclude that Mr Kisun satisfies the oppression limb of s 34(2) on the balance of probabilities.

137    I have considered in the alternative whether once Dr Nielssen’s evidence was led it was incumbent upon New Zealand to have elicited evidence about how the New Zealand prison system deals with elderly cognitively impaired prisoners on remand. However, the burden of proving oppression rests on Mr Kisun. I do not think that this would be legitimate.

Result

138    Mr Kisun’s application to review the magistrate’s decision should be dismissed with costs as taxed, assessed or agreed.

Associate:

Dated:    12 March 2024