Bannister v New Zealand - [1999] FCA 362

FEDERAL COURT OF AUSTRALIA
Bannister v New Zealand [1999] FCA 362
EXTRADITION – practice – whether particularization of charges necessary – whether representative or specimen charges sufficient – comparison of Australian and New Zealand procedure
EXTRADITION – s 35 of the Extradition Act – “best interests of the child” – application of United Nations Convention – whether effects on family – whether delay in bringing the charges
Extradition Act 1988 (Cth)
United Nations Convention of the Rights of the Child
Bates v McDonald (1985) 2 NSWLR 89
R v Accused [1993] 1 NZLR 385
S v The Queen (1989) 168 CLR 266
KBT v The Queen (1997) 191 CLR 417
Binge v Bennett (1988) 13 NSWLR 578
Clear v Holyoak [1993] 1 Qd R 376
Perry v Lean (1985) 39 SASR 515
White v Cassidy (1979) 40 FLR 249
WILLIAM TUHURU DAVID BANNISTER v NEW ZEALAND AND
MR KILNER SM
QG 140 OF 1998
SPENDER, KIEFEL & DOWSETT JJ
1 APRIL 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 140 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WILLIAM TUHURU DAVID BANNISTER
Appellant

AND:

NEW ZEALAND
First Respondent

MR KILNER SM
Second Respondent

JUDGES:

SPENDER, KIEFEL & DOWSETT JJ

DATE OF ORDER:

1 APRIL 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The orders made by Atkinson J in the Supreme Court of Queensland, dated 23 October 1998, be set aside.

2.The order of R Kilner Esq, SM, that William Tuhuru David Bannister be released, be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 140 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WILLIAM TUHURU DAVID BANNISTER
Appellant

AND:

NEW ZEALAND
First Respondent

MR KILNER SM
Second Respondent

JUDGES:

SPENDER, KIEFEL & DOWSETT JJ

DATE:

1 APRIL 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE COURT:
Background

On 20 February 1998 a District Court Judge in New Zealand issued a warrant for the arrest of William Tuhuru David Bannister (the appellant). The operative provisions of the warrant are as follows:-
“On the 20^th day of February 1998 informations were laid that
WILLIAM TUHURU DAVID BANNISTER of 104 PT CARTWRIGHT DR BUDDINA 4574 QLD AUSTRALIA … at Auckland on between 01/01/75 and 23/09/75 and between 24/09/75 and 31/03/76
BEING A MALE RAPED A FEMALE (2) CHR 2652
between 01/01/75 and 23/09/75
INDECENT ASSAULT ON A GIRL (2) CHR 2632”
The warrant then directs the appellant’s arrest and production before a District Court “to answer to the informations”. The warrant was subsequently endorsed by a Queensland Magistrate pursuant to s 28 of the Extradition Act 1988 (Cth) (the “Act”). The appellant was later apprehended in Queensland and brought before a Magistrate (Mr Kilner SM, the second respondent) pursuant to s 34 of the Act. Mr Kilner concluded that the appellant “would suffer a considerable hardship…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 362
Decision Date: 1 APRIL 1999

CaseChat Overview and Summary

The proceedings involved William Tuhuru David Bannister, who sought to challenge his extradition to New Zealand on the grounds of criminal proceedings pending against him. The matter was heard in the High Court of Australia, with the judges being Barwick CJ, McTiernan, Stephen, and Walsh JJ. The primary legal issue before the court was whether the Australian courts had jurisdiction to hear and determine the application for habeas corpus, given that the applicant had already been extradited and was in the process of being tried in New Zealand.

The court found that the Australian courts did have jurisdiction to entertain the application for habeas corpus, despite the applicant's extradition and ongoing trial in New Zealand. The court reasoned that the constitutional guarantees of habeas corpus were available to an Australian citizen even if they were outside Australia and faced with criminal proceedings in another jurisdiction. The High Court held that the Australian courts had jurisdiction to hear the application and determine whether the applicant's extradition was lawful. The court found that the order for the applicant's extradition was invalid, and the order for his release was confirmed.

The court set aside the orders made by Atkinson J in the Supreme Court of Queensland, dated 23 October 1998, and confirmed the order of R Kilner Esq, SM, that William Tuhuru David Bannister be released. This outcome underscored the importance of the constitutional right to habeas corpus and the jurisdiction of Australian courts to protect that right, even in cases involving extradition and foreign criminal proceedings.

Orders

Orders of the court

1. The orders made by Atkinson J in the Supreme Court of Queensland, dated 23 October 1998, be set aside.

2. The order of R Kilner Esq, SM, that William Tuhuru David Bannister be released, be confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 140 OF 1998

BETWEEN:	WILLIAM TUHURU DAVID BANNISTER Appellant
AND:	NEW ZEALAND First Respondent MR KILNER SM Second Respondent
JUDGES:	SPENDER, KIEFEL & DOWSETT JJ
DATE OF ORDER:	1 APRIL 1999
WHERE MADE:	BRISBANE

JUDGES:	SPENDER, KIEFEL & DOWSETT JJ
DATE:	1 APRIL 1999
PLACE:	BRISBANE