Hicks, D L v Director of Public Posecutions

[1990] FCA 518

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IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA	1	NO. W G135 Of 1989	I
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DISTRICT REGISTRY	1	, ,
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GENERAL	DIVISION	1	I	I
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BETWEEN:	DAVID LLEWELYN HICKS	1 ..	8
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Appellant ,

AND:  IAN MARTIN I '

First Respondent

AND :  DIRECTOR OF PUBLIC
PROSECUTIONS

Second Respondent

CORAM: Foster J.
DATE: 12 July 1990

PLACE: PERTH

MINUTE OF ORDER

COURT	Foster J.
DATE OF ORDER	12 July 1990.
WHERE MADE	Perth 8 .

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THE COURT ORDERS THAT:

1.    The application be dismissed.

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2.    The order made by the learned magistrate be

confirmed. r

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Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.	i
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18 SEP 1990

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REGISTRY

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA	1	NO. W G135 of 1989
DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: DAVID LLEWELYN HICKS

Appellant

AND :  IAN MARTIN

First Respondent

AND :  DIRECTOR OF PUBLIC
PROSECUTIONS

Second Respondent

CORAM: Foster J.
DATE: 12 July 1990

PLACE: PERTH

REASONS FOR JUDGMENT
(Ex tempore)

FOSTER J.	:
I have been much assisted by the able arguments
of counsel in this matter.	I have come to a firm

conclusion as to what my decision should be. No purpose is to be served by my delaying the giving of that decision and

the reasons for it.

This appeal comes before the Court from the decision of a magistrate made under s.34 of the Extradition Act 1988 ("the Act"). His Worship made an order under the Act that the appellant, David Llewelyn Hicks, should be surrendered to New Zealand. The appellant came before the magistrate pursuant to a warrant issued in New Zealand for his arrest, which warrant had been endorsed

in accordance with the relevant provisions of the E.
The warrant was issued pursuant to an information laid in
the District Court at Palmerston North, New Zealand,
which information charged an offence against the appellant
under ss.222 and 227A of the Crimes Act (New Zealand).

The offence, put briefly, was one of receiving a cheque on behalf of one Lynette Ruth Norton and fraudulently converting to his own use part of the proceeds of that cheque. The effect of the offence so framed was, under the provisions of the New Zealand G, to lay a charge of theft. I do not propose to go into the background details in relation to the alleged offence; suffice to say that at the time of the alleged theft the appellant was an accountant and the complainant, MS Norton, was his client.

The appeal to this Court is brought under the provisions of s.35 of the K. By virtue of s.35(6)(d)

the application proceeds before this Court by way of	rehearing. I have consequently had regard to the evidence	given before the learned magistrate and also to affidavit
material placed before me by both the appellant and the respondent, Director of Public Prosecutions, in addition to short oral evidence given by the appellant himself. I do not propose in these short reasons to set out in detail any of that evidentiary material.
In determining the matter, I have regard to the same statutory considerations as were before the learned magistrate. These considerations are set out in s.34 of the G. The Court, as was the magistrate, is required to make an appropriate order surrendering the appellant to New Zealand unless it is satisfied by the appellant, pursuant to the provisions of s.35(2) of the &, that it would be relevantly unjust, oppressive or too severe a punishment to make the surrender order.
It has been submitted to me that there would be relevant injustice and oppression if the magistrate's order : ._

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were not set aside.	The nature of the injustice and	!
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oppression relied upon has been fairly closely defined in the submissions that have been made to me, and I shall	! .
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refer to those submissions shortly. It is necessary,	: I .,
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however, first to have regard to the definition of these	I-
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terms which has resulted from their prior consideration by
the courts.	i ,
I have been much assisted by counsel in their not necessary in these reasons that I set out all the	bringing to my attention all relevant authorities. It is
earlier cases as they demonstrate an acceptance of the definitions of these terms which were laid down in a case of high authority in 1978. That case is Kakis v. The Government of the Republic of Cyprus (1978) 1 WLR 779, or (1978) 2 AER 634.

In a passage which has been cited many times, "'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would be unfair."

~ o r d Diplock says as follows:

The appellant, through his counsel, has submitted that it would be relevantly unjust for the order of surrender to be made. He bears the onus of establishing this injustice as he also bears the onus of establishing that such an order would be oppressive. This appears quite clearly from the wording of s.35(2) of the Act.

The Court, in proceedings brought under these sections, neither at first instance nor on appeal is permitted to go into the merits of the charge sought to be brought to trial in New Zealand. I have received some evidence in these proceedings as to the nature of the

that charge in New Zealand on the very limited basis that	charge and matters that might be agitated in the hearing of
I was enabled thereby to understand the nature of the claims made by the appellant as to particular injustice that might be occasioned to him in the trial of the matter in New Zealand.
Put simply, his case on this point is that he would be prejudiced at the trial because of the loss, or possible destruction, of certain documents which would be necessary to him for the establishment of his defence. It is submitted that those documents would bear not only upon the commission or otherwise of the offence itself but would also contain documentary material which might be of use in discrediting the evidence of one Kerry Simpson who, on the material before me, might reasonably be expected to be a critical prosecution witness.
The evidence concerning this aspect of the case really amounts, in my view, to nothing more than a number of assertions made by the appellant as to the nature of this evidence and the use to which it could be put. There appears, quite clearly from the material, a history of the appellant's business and financial problems in New Zealand prior to his leaving that country in April of 1988. It is clear that after disposing of what appears to have been a successful accounting practice he entered into various business ventures which for one reason or another failed,
before me material suggesting that the person, Simpson, leaving him in a parlous financial situation. He puts
to whom I have made reference, played a part, after those financial problems eventuated, in the management of the appellant's financial affairs. It appears that Simpson was a qualified accountant and that the appellant asserts that considerable blame attaches to that person for mismanagement of his affairs and also in relation to matters which, broadly speaking, have led to the present
charge against him in New Zealand.
I do not need to go into the detail of those extreme. It fails totally to identify the documents, the loss of which is said to assume such importance in the fair trial of the appellant in New Zealand. The description of them really goes little beyond their being stated to be personal papers of the appellant which were not delivered to him by Simpson, despite his repeated and insistent requests made in 1988, shortly before his departure from New Zealand. There is no specificity as to the documents themselves, nor as to the use to which any particular document could be put in the conduct of the appellant's defence . The appellant clearly bears the onus of establishing these matters. He has failed to do so. I note, indeed, that this particular matter does not appear to have been raised originally before the learned magistrate when the order appealed from was made. matters. The evidence put before me is sketchy in the
I should note also that the courts have dealt with the question of injustice, as referred to in this section, by pointing out that broad considerations of community interest are also involved as well as the question of any possible injustice to the defendant at his trial. The charge involves a considerable sum of money and is obviously a serious one. As was observed by Mohr J. in Perry v. Lean (1985) 39 SASR 515 at 530:

"The concept of 'injustice' or 'unjust' is not confined to the appellant. This concept needs to be considered in the wider concept of justice taken as an entire concept including the general interest of the community as a whole in having persons charged with serious crimes brought to trial."

(See also Re Tardrew (1988) 37 A Crim A 264 at 272).

In my view, considerations of this kind must enter into my decision in this matter.

I am quite satisfied that it has not been

demonstrated in these proceedings that there would be
relevant injustice if the order for surrender were made.

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As to the claim that a surrender order would be oppressive within the meaning of the section, the appellant	!	-:
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relies on evidence placed before the Court as to the
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hardship - financial, domestic and emotional - which would
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be occasioned to him if the order were made.
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The evidence establishes that the appellant suffered significant financial loss in New Zealand when the
business ventures to which I have already made reference,	L
failed from 1986 onwdrds. He also suffered, apparently,	>
quite severe problems with his health during this period. It is not unlikely, on the evidence before me, that his problems with health contributed to the financial and commercial problems suffered by him at that time.
In April 1988 he left New Zealand, on what appears to have been a limited business trip to Singapore.
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At that time his financial problems had well and truly
crystallized.	It would appear that he was indeed in severe	.
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financial difficulties.	On the return from Singapore he	F ,
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stopped at Perth, where his brother-in-law resides and took

up temporary residence. Shortly thereafter, I am satisfied

that he became aware that the police in New Zealand were	i
investigating the matters which have led to the subject charge. He became so aware in May of 1988 having arrived in Perth late in April. He did not then return to New Zealand.
I am not satisfied, on the evidence, that, as he asserts, he was advised, as time went on, from sources in New Zealand, that the investigations of these matters had been terminated by the police or that he was "in the clear". The appellant bears the onus and he fails to discharge it. In particular, there is an absence of corroborative evidence from his solicitor in New Zealand from whom he claims that he obtained this information, and
no indication as to why this evidence was not forthcoming.

It is clear that, although there was obviously good reason for him to return to New Zealand and make

some answer to these charges - or at least assist the

police in their investigations - he chose rather to remain	. ,
in Perth. He has built up, as suggested on the evidence
before me, a reasonably successful accounting and	!
consulting business in Perth. He has been joined in Perth by his wife and daughter. He wishes to be joined by a son who is in some difficulties in New Zealand. In this context it is put with some cogency that the effect of making the extradition order in this case would be to inflict considerable hardship upon the appellant and also upon his family.
The case must, of course, be approached on the basis that the effect of such an order would be merely to return him to New Zealand to stand trial in respect of the charge which has been laid, and of which he, apparently, claims to be innocent.
It is appropriate to observe, of course, that the curial procedures of that country spring from the same source as the curial procedures of this country, and there is absolutely no question that he will receive a fair trial according to law. There is also nothing to suggest that there will be any unacceptable delay in bringing him to trial in New Zealand. I am also not satisfied that he
would be unable to afford representation or be totally	ineligible for some form of legal aid in that country.
I have been referred to a number of authorities bearing on this question of oppression. I do not propose to refer to them all. I will make reference, however, to the case of Bryan v. Preston ((1982-83) 44 ALR 217) a decision of Yeldham J. sitting in the Common Law Division of the Supreme Court of New South Wales. The case, in my view, is strongly analogous to the present case.
It involved an appellant in respect of whom an extradition order had been made by a stipendiary magistrate in Sydney. The appellant was alleged to have committed a
series of offences involving financial transactions in New Zealand. He had come to Australia before any charges had been laid in respect of those alleged offences.
He resided in Sydney for a period of approximately two years, set up a home with his family and apparently established himself in some business. There was obvious hardship involved in his being returned to New Zealand to face the charges which had been laid against him in that country. His Honour dealt with the question of oppression in the following way (at p.223):

"The second question is whether as a result of the passage of time it would be oppressive to surrender the plaintiff. This inquiry is directed to hardship to the plaintiff resulting from changes in his circumstances that have occurred during the

Kakis, supra, and per Legoe J in Golobic v

period in question - see per Lord Diplock in

Radali (1980) 33 ALR 61 at 69. Bearing in mind that the order sought is merely the return of the plaintiff to New Zealand for the purpose of standing trial, I do not regard the fact that he and his family have established themselves in Sydney and that the plaintiff has set up in business in the intervening period warrants the conclusion that by reason of the passage of time it would be oppressive to return him to New Zealand for trial. It is obviously a matter of hardship to any alleged fugitive offender to be required to return to another country for the purpose of facing trial, but more than this is plainly required. The hardship must be reasonably

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substantial and it must be a product of the time which	I - .
has elapsed."	: i

Although it may well be said in this case that there will be not insignificant hardship occasioned by the	L
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making of the surrender order, the situation here is, in my
view, basically similar to the situation with which his	: I
Honour was concerned. The material before me establishes
to my satisfaction that, at all relevant times, this
appellant was not unaware of the fact that problems in	, ,
relation to this matter could be coming to a head in New
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Zealand. He fails to satisfy me that it was impossible for
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hlm to return to New Zealand and take some steps in relation to the matter.
He chose, in effect, to remain in Perth rather than return to New Zealand for that purpose. He increased the potential of hardship by establishing a home and business here. It cannot be said in these circumstances that the hardship which would be occasioned by his being required to go back to New Zealand and perhaps abandon that
home and business is in any way simply the product of the	time which has now elapsed. He has not satisfied me that
it would be oppressive for the order to be made.
The final grounds relied on are really only the same grounds in combination and the submissions made in respect of them are the same. They do not require that I alter the decision which I am impelled to reach, namely
that the appropriate order should be made under the section, namely, that this application be dismissed and that the order made by the learned magistrate be confirmed.

I certify that this and the

preceding eleven pages are a true copy of the Reasons for Judgment herein of His Honour Mr Justice Foster.

Dated: \;L JLJ? 1990

Counsel for the appellant	: Mr 3. Courtis
Instructed by	: Claudio Russo Shaw
Counsel for the respondent	: Mr Sean O'Sullivan
Instructed by	: Director of Public

Prosecutions

Date of Hearing	: 12 July 1990.
Date of Judgment	: 12 July 1990.