Hicks, D.L. v Martin, I

Re: DAVID LLEWELYN HICKS
And: IAN MARTIN and DIRECTOR OF PUBLIC PROSECUTIONS
No. WA G45 of 1991
FED No. 423
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Lee(1) and Olney(2) JJ.

CATCHWORDS

Extradition - surrender to New Zealand - appeal from decision confirming magistrate's order to surrender - whether the judge should have been satisfied that surrender would be unjust, oppressive or too severe a punishment.

Words and Phrases - "unjust, oppressive or too severe a punishment".

Crimes Act (NZ) ss.222, 227A

Extradition Act 1988 ss.5, 28, 32 (Pt.III), 34 (Pt.III), 35 (Pt.III); sub-ss.34(1), 34(2), 35(1), 35(3); paras.34(1)(c) and (d)

Extradition (Commonwealth Countries) Act 1966 ss.4, 11, 16 (Div 2 Pt.II), 17, 27 (Pt.III), 28

Extradition (Foreign States) Act 1966

Extradition (Repeal and Consequential Provisions) Act 1988

Fugitive Offenders Act 1881 (U.K.) ss.2, 5, 10, 34

Fugitive Offenders Act 1967 (U.K.)

Service and Execution of Process Act 1901 sub-s.18(6)

Aston v Irvine (1955) 92 CLR 353

Bryan v Preston (1982-3) 44 ALR 217

Re H. (a prisoner) (1971) NZLR 982

Kakis v Republic of Cyprus (1978) 1 WLR 779

Ex parte Maher (1983) 2 Qd.R. 695

Perry v Lean (1985) 63 ALR 407

White v Cassidy (1979) 40 FLR 249

HEARING

PERTH

#DATE 24:7:1991

Counsel for Appellant: J. Courtis
instructed by: Claudio Russo Shaw

Counsel for Second Respondent: S.W. O'Sullivan
instructed by: Director of Public Prosecutions

Solicitor for First Respondent: The Crown Solicitor

ORDER

The appeal be dismissed.

The appellant pay the second respondent's costs of the appeal.

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

JUDGE1

We have had the advantage of reading the reasons of Olney J. with which we agree subject to the following comments.

The Extradition Act 1988 ("the Act") replaced the Extradition (Commonwealth Countries) Act 1966 and the Extradition (Foreign States) Act 1966 each of which was repealed by the Extradition (Repeal and Consequential Provisions) Act 1988. Prior to the introduction of the Extradition (Commonwealth Countries) Act 1966, Australian law relating to extradition to and from other dominions was governed by the Imperial Act, Fugitive Offenders Act 1881 (U.K.).
By ss.2 and 34 of the Fugitive Offenders Act 1881 (U.K.) a person accused of having committed an offence or a person convicted of an offence and unlawfully at large before the expiration of a sentence could be apprehended and returned to the dominion from which that person was a fugitive.
Under s.5 of the Fugitive Offenders Act 1881 (U.K.) an apprehended fugitive was required to be brought before a magistrate who was required to hear the case in the same manner as if the fugitive were charged with an offence committed within the magistrate's jurisdiction, and if the evidence produced raised a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, the magistrate was required to commit the fugitive to prison to await return.
Section 10 of the Fugitive Offenders Act 1881 (U.K.) empowered a superior court to order the discharge of a fugitive. Section 10 read as follows:

"10. Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the order, or may make such other order in the premises as to the court seems just."

The power of the superior court was not restricted to or dependent upon a review of a magistrate's decision.
The Extradition (Commonwealth Countries) Act 1966 applied to fugitives defined in s.4 of that Act, inter alia, as persons accused of an extradition crime alleged to have been committed or persons convicted of an extradition crime.
The discretion to refuse to surrender a fugitive on the ground that it would be unjust or oppressive or too severe a punishment to do so flowed through to the Extradition (Commonwealth Countries) Act 1966 from the Fugitive Offenders Act 1881 (U.K.). In ss.16 and 27 of the Extradition (Commonwealth Countries) Act 1966 that discretion was given to the magistrate before whom a person was brought after apprehension and was not reserved to the court reviewing the magistrate's decision.
The words "too severe a punishment" in s.16 of Div 2 of Pt.II of the Extradition (Commonwealth Countries) Act 1966 dealing with the extradition of fugitives to declared Commonwealth countries, and in s.27 of Pt.III of that Act dealing with the surrender to New Zealand of a person accused or convicted of an offence against the law of that country were unlikely to be mere surplusage and were probably intended to make available a more effective discretion to be exercised by the magistrate or the court reviewing the magistrate's order. It is possible that the words had particular relevance to the case of a fugitive or person who had been convicted of an offence, although not limited to such a circumstance.
The word "punishing" was used in s.11 of the Extradition (Commonwealth Countries) Act 1966 as part of the juxtaposed concepts of "prosecuting or punishing" a fugitive.
The words "too severe a punishment" were not included in the Fugitive Offenders Act 1967 (U.K.) and, therefore, were not subject to the House of Lords' consideration in Kakis v Republic of Cyprus (1978) 1 WLR 779 from which Lord Diplock's dictum on the words "unjust and oppressive" provided much assistance thereafter.
A review of a magistrate's decision made under ss.16 and 27 of the Extradition (Commonwealth Countries) Act 1966 was provided for in ss.17 and 28 of that Act. An important difference in respect of the review procedures applied with regard to the surrender to New Zealand of an accused or convicted person (s.28) was that in such a case the review of the magistrate's decision was to be by way of rehearing and evidence additional to, or in substitution for, the evidence given on the making of the order may be given in connection with the review. The review of an order that an apprehended person be surrendered to a Commonwealth country (s.17) was limited to evidence given in the proceedings before the magistrate and to a determination by the court as to whether it was satisfied that the decision of the magistrate was valid.
It is apparent that in respect of a surrender to New Zealand the reviewing court was able to exercise the full discretion available to the magistrate.
Sections 34 and 35 contained in Pt.III of the Act dealing with the extradition from Australia to New Zealand of persons apprehended by reason of an indorsed New Zealand warrant, repeat in substance the provisions of ss.27 and 28 of the Extradition (Commonwealth Countries) Act 1966.
A "New Zealand warrant" is defined in s.5 of the Act as a warrant that purports to be issued by, inter alia, a court of New Zealand for the arrest of a person accused or convicted of an offence against the law of New Zealand.
The words "too severe a punishment" in sub-s.34(2) of the Act seem to carry forward the meaning attached to those words in the repealed provisions of the Extradition (Commonwealth Countries) Act 1966.
To what extent those words add anything in collocation with the words "unjust" and "oppressive" is unnecessary to determine in this appeal where there has been no argument that they do.
The circumstances which may satisfy a magistrate that it would be unjust or oppressive to surrender a person to New Zealand are undefined and may include matters such as the deterioration of a person's health, advanced age, disruption of business and family life, and regard for the degree of rehabilitation of the person since the alleged offence by the establishment of social, business and familial ties.
Although it is inappropriate for the magistrate to embark upon a consideration of the guilt or innocence of the apprehended person, a matter now made clear by sub-s.34(4), it is probable that such a person is not precluded from submitting, along with other circumstances, that it would be unjust or oppressive to be returned for trial where the evidence is clearly insufficient to sustain a conviction or the charge is entirely misconceived. (See Ex parte Maher (1983) 2 QdR 695; Aston v Irvine (1955) 92 CLR 353 at pp 366-367.)
It may also be appropriate for the magistrate, after having regard to the seriousness of the charge, to consider whether it may be unjust or oppressive to return the apprehended person to face that charge if circumstances such as illness or the absence of a witness material to the defence unfairly imperil that person's ability to conduct a defence to the charge. (See Kakis v Republic of Cyprus.)
The prospect that if returned a person would be remanded in custody without bail, or would be unable to obtain bail because of lack of means, thereby suffering detriment to health, may be regarded as an unjust or oppressive result. (See Re H. (a prisoner) (1971) NZLR 982.)
His Honour acknowledged that the appellant had established business and family ties in the State which amounted to some degree of rehabilitation but was inclined to discount the degree of oppression that may result from the disruption of those ties by having regard to the fact that the appellant had decided to stay away from New Zealand after becoming aware that a police officer wished to interview him in respect of the matter that later became the subject of the charge against him.
There was no suggestion that the appellant caused any delay in the execution of the warrant issued for his arrest. Although the New Zealand authorities were entitled to seek assistance from the appellant in conducting their enquiries into the complaint received, the appellant was not obliged to return to New Zealand to provide that assistance and was entitled to resettle his family in this State and rehabilitate his business and family life if able to do so. Those steps were not taken in the face of a warrant for his arrest. Such a warrant was not issued and a decision not made to seek his return to New Zealand until September 1989, approximately seventeen months after the appellant had began to establish himself in this State. The date on which the alleged offence occurred was in or about August 1986.
Perhaps it could be said that the appellant had no reason to believe that the authorities in New Zealand had closed the file on the matter and would have been aware that he may find himself subject to extradition proceedings at any time. The more time that passed without the issue of a warrant and the more firmly the appellant established his ties in this State the less relevant became the fact that the appellant had knowledge that authorities in New Zealand were investigating the possibility that the appellant had committed an offence under New Zealand law to the question of what oppression, if any, would be involved in the return of the appellant to New Zealand to stand trial for that offence.
We do not take his Honour to have considered the matter other than in that manner.
We see some force in the ground of appeal that his Honour failed to accept uncontradicted evidence that the appellant and his wife would obtain no assistance from the New Zealand social welfare system if returned to New Zealand and would be left without means. Had the evidence in respect of access to social welfare payments, deposed to by the appellant in his affidavit, been objected to by the respondent there could have been no issue as to what use could be made of it. There was no objection and it may be noted that the respondent received instructions from a party particularly well placed to determine whether the appellant's assertions failed to accord with fact.
However, his Honour did not disregard that evidence. He considered it and gave it little weight. His Honour remained unsatisfied that the appellant and his family would be left destitute if the appellant were returned to New Zealand. His Honour had already determined that the appellant and his family would suffer hardship if the appellant were returned, part of that hardship as understood by his Honour no doubt including the prospect of financial deprivation. His Honour concluded that on balance after considering all the circumstances it would not be unjust or oppressive to order that the appellant be returned.
That was the task his Honour was required to carry out (see Perry v Lean (1985) 63 ALR 407 per Jacobs J. at p 413) and it has not been shown that his Honour erred in law in that process of review of the magistrate's decision. The appeal must be dismissed.

JUDGE2

This is an appeal pursuant to subsection 35(3) of the Extradition Act 1988 (the Act) from an order of a judge of the Federal Court confirming orders made by a magistrate (the first respondent) pursuant to paragraphs 34(1)(c) and (d) for the surrender and committal of the appellant.

By information laid on 29 September 1989 in the District Court at Palmerston North, New Zealand, the appellant was charged under sections 222 and 227A of the Crimes Act (NZ) that he had received money on behalf of one Norton and fraudulently converted part of it to his own use. The amount involved is said to be $20,000. The appellant was arrested in Perth on 18 October 1989 under a warrant issued in New Zealand and endorsed by a magistrate pursuant to section 28. On 17 November 1989 the first respondent ordered, by warrant pursuant to paragraph 34(1)(c) that the appellant be surrendered to New Zealand and, pursuant to paragraph 34(1)(d), ordered that he be committed to prison pending execution of the warrant. The appellant sought a review of the magistrate's order pursuant to subsection 35(1). His application was hearded by a judge of the Federal Court (Foster J) on 12 July 1990 upon which day it was dismissed. The appellant then appealed to the Full Court of the Federal Court pursuant to subsection 35(3). The appeal was heard on 1 and 5 November 1990 and on 24 December 1990 orders were made allowing the appeal, setting aside the order of Foster J dismissing the application for review and directing that the matter be reheard by a single judge of the Court. Subsequently, on 3 April 1991 the matter was reheard by French J and on 2 May 1991 the application was dismissed. The appellant appealed from the decision of French J, his appeal being the matter presently before the Court.
THE FACTS
The facts of the case can be summarised as follows. The appellant formerly practised as a chartered accountant in New Zealand but in May 1986 he sold his practice and thereafter acted as a consultant to a number of his former clients and as a director in a number of their companies. In September 1986, in conjunction with others, he acquired an interest in an exporting company which initially traded profitably but which was later placed in receivership. In August 1987 and again in November 1987 he was hospitalised and underwent surgery for a perianal abscess. Following his first operation his sole source of income was as managing director of a company, but in December 1987 the premises of that company, which were uninsured, were destroyed by fire and the company was thereafter unable to continue trading. Following the second operation the appellant set up a consultancy on his own account but after the intervention of a firm of accountants who claimed that he was acting in breach of a restraint of trade clause in the agreement for the sale of his interest in the practice in 1986, he was unable to continue in business. In April 1988 he travelled to Singapore with a client at the client's expense. Although he had a return ticket, and intended to return to New Zealand, after 14 days in Singapore he set out on 27 April 1988 to travel back to New Zealand via Perth where he decided to stop over for the purpose of seeing his brother-in-law and to ascertain what business prospects there may be there. He has not since returned to New Zealand.
When the appellant left New Zealand for Singapore early in April 1988 he was unaware that on 18 March 1988 a complaint had been made to the police concerning the matter referred to in the information particularised above. The appellant first became aware of the complaint when told about it in a telephone conversation with his wife some time after his arrival in Perth. The exact date when this occurred was not established. However, it was established that the appellant's wife was contacted by a police officer, one Nicholls, first on 4 May 1988 and again on 20 May 1988. On 23 May 1988 Nicholls was contacted by the appellant's New Zealand solicitor and on 11 July 1988 he executed a search warrant at the premises then occupied by Mrs Hicks. On 14 July 1988 the appellant contacted Nicholls by telephone but did not disclose his whereabouts.
In June 1988 the appellant and his wife sold their house in New Zealand. At about the same time the appellant commenced working as a contract accountant for a firm in Perth. At the end of October 1988 he and another accountant set up a management consultancy which after a slow beginning became profitable. In January 1989 the appellant's wife and their teenage daughter moved to Perth. Up until 17 November 1989 the appellant's business was quite successful but following the orders for surrender and committal made on that day the business "practically collapsed" (the appellant's description). By May 1990 when he swore an affidavit in relation to the proceedings before Foster J his business had recovered. At that time Mrs Hicks was employed full-time as manageress of a design boutique.
On 15 October 1990 the appellant sold his management consultancy business and used the proceeds to pay off debts which he said had arisen upon him being placed in custody after the adverse judgment against him on the review application in July 1990. Following his release from custody on bail he directed his efforts towards a business systems business which he built up and later sold in January 1991. The sale proceeds were used to purchase a publishing business and in the same month he purchased a business known as Springtime Natural Desserts which specialises in the manufacture of dairy free and health ice creams.
The appellant's wife has been unemployed since August 1990 and has been unable to find work. The Hicks' 23 year old son lives with them and is employed in the business of Springtime Natural Desserts. He expects to complete a course to become an audio engineer in August 1991. Their second son lives in New Zealand, and their daughter is attending college in Perth.
Reference has already been made to the two operations the appellant underwent in New Zealand in 1987. In addition he had a further operation in November 1990. He suffers from a high anal fistula and has been advised that he may need a permanent colostomy.
In the event that the appellant is returned to New Zealand he would be brought before a judge of the District Court at Palmerston North and remanded for one week, or longer if he or his counsel so required. There would then be a committal hearing, and if the committal were ordered, a trial would be scheduled within 2 or 3 months thereafter. The charge would be heard in the District Court at Palmerston North. The appellant's own estimate is that the whole process from the first remand to trial could take from 6 to 9 months.
THE STATUTE
Part III of the Act is entitled "Extradition from Australia to New Zealand" and comprises sections 20 to 30 (inclusive). Section 28 empowers a magistrate to endorse a warrant issued in New Zealand for the arrest of a person accused or convicted of an offence against the law of that country. By such endorsement a magistrate authorises the execution of the warrant in Australia by any police officer. Section 32 requires that a person arrested under an endorsed New Zealand warrant shall be brought "as soon as practicable before a magistrate in the State or Territory in which the person is arrested" and shall be remanded in custody or, in special circumstances, on bail "for such period or periods as may be necessary for proceedings for the purpose of section 34 to be conducted." Section 34 provides:

"34(1) Where:

(a) either:

(i) a person has been remanded after being arrested under an indorsed New Zealand warrant; or

(ii) a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person; and

(b) a request is made to a magistrate by or on behalf of the person or New Zealand for proceedings to be conducted under this section; the magistrate shall, unless the magistrate 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 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 shall order that the person be released.

(3) The magistrate shall, after making an order in relation to the person under paragraph

(1)(c), inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 35.

(4) In the proceedings under this section, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued."

Review of the magistrate's order is provided for in s.35 which, in the relevant parts, is as follows:

"35(1) Where a magistrate of a State or Territory makes an order under section 34 in relation to a person:

(a) in the case of an order under paragraph 34(1)(c) - the person, or

(b) in the case of an order under subsection 34(2) - New Zealand;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2) The Court may, by order:

(a) confirm the order of the magistrate; or

(b) quash the order of the magistrate and direct a magistrate to:

(i) in the case of an order under paragraph 34(1)(c) - order the release of the person; or

(ii) in the case of an order under subsection 34(2) - order, by warrant, that the person be surrendered to New Zealand.

(3) The person or New Zealand, whether or not the person or New Zealand was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.

(4) ......

(5) ......

(6) Where the person or New Zealand:

(a) applies under subsection (1) for a review of an order;

(b) appeals under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d) in the case of an application for review - the court to which the application is made shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate;

(e) in the case of an appeal - the court to which the appeal is made shall have regard only to the material that was before the court that conducted the review."

THE FIRST REVIEW AND APPEAL

In the proceedings before the first respondent on 17 November 1989, and before Foster J on 12 July 1990 evidence was led on behalf of the appellant in an endeavour to demonstrate that it would, in the terms of subsection 34(2) of the Act be "unjust, oppressive or too severe a punishment" to surrender him to New Zealand.
In the appeal from Foster J two grounds were argued. First it was said that the judge had erred in law by rejecting a submission that it would be unjust to surrender the appellant to New Zealand because of the lengthy period which had elapsed since the alleged offence and because of the prejudice the appellant would experience in the conduct of his trial as a result of the loss of his financial documents. For reasons which need not be canvassed here, the Full Court ruled against this ground.
The second ground asserted was that Foster J had erred in law by rejecting a submission that it would be oppressive or too severe a punishment to surrender the appellant to New Zealand. The evidence before Foster J had shown that the appellant would suffer significant financial hardship, domestic upheaval and emotional distress if he were to be returned to New Zealand. The Full Court concluded that Foster J had been of the view that for the appellant to show that it would be oppressive or too severe a punishment to surrender him to New Zealand, it was incumbent on him to show that the hardship he would encounter would be not only substantial but also occasioned by the delay in bringing him to trial. In this context Foster J had referred to a dictum of Yeldham J in Bryan v Preston (1982-3) 44 ALR 217 at p 223, a case which His Honour had said was strongly analogous to the one then before him.
The Full Court was of the contrary view. Their Honours said (at pp 6-7):

"Subsection 34(2) of the Act obliged the magistrate to order that the appellant be released if he reached the conclusion that because of one or more of the circumstances referred to in paras.(a), (b) and (c) "or for any other reason" it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand. It is to be observed that the words 'or for any other reason' did not appear in the legislation at the time of the decision in Bryan v Preston. There may well be cases where hardship would be so great as to make it oppressive or too severe a punishment to surrender a person to New Zealand albeit that the hardship is unrelated to the passage of time since the occurrence of the alleged offence. It is 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."

And in the concluding paragraph of the reasons at p 9, their Honours said:

"Since we are of the opinion that it cannot be said that the trial judge would not have reached a different conclusion had he taken the view that the appellant was entitled to rely upon hardship even though it was not the product of the time which has elapsed since the occurrence of the alleged offence, we think there is no alternative but to set his decision aside."

THE REHEARING

In his reasons published on 2 May 1991 following the rehearing of the appellant's review application, French J, after referring to the earlier appeal proceedings, observed (at p 3):

"The sole ground relied upon was that (the appellant) and his family would suffer such hardship, if he were surrendered to New Zealand, that the surrender would be unjust, oppressive or too severe a punishment."

In a long and detailed judgment French J canvassed all of the evidence before him. For the most part the evidence was on affidavit. It included so much of the affidavit material put before Foster J as remained relevant to the single ground of review relied upon, two more recent affidavits sworn by the appellant, affidavits of the Crown Solicitor at Palmerston North and three police officers from New Zealand and 3 pages of the transcript of the appellant's evidence before Foster J. None of the deponents was cross-examined and no oral evidence was adduced at the rehearing. Absent cross-examination, the judge indicated that he accepted the veracity of the affidavits except to the extent that they seemed inherently improbable or were in conflict with other affidavits in a way that could not be resolved on the papers.
The appellant's most recent affidavits (sworn respectively on 27 March 1991 and 2 April 1991) made reference to his claimed inability to qualify for legal aid in New Zealand and to the New Zealand social welfare system. As to these matters French J said (at pp 20-1):

"He gave evidence that he would be unable to qualify for legal aid in New Zealand as no aid is given to any person who has had an income exceeding $20,000 in the 12 months prior to the application for aid. This evidence was based on personal experience gained by assisting a client in New Zealand to apply for legal aid and I give it no weight as evidence of the current position in that country. He said also that he would be unable to afford proper legal representation at trial out of his own resources and, absent any cross-examination, I accept that evidence. Hicks made reference to the New Zealand Welfare system. He would face a 6 month qualifying period in New Zealand before he could obtain unemployment benefit and would have no assets or income from Australia and nowhere to live. I do not accept this as anything more than his opinion of the current availability of social welfare benefits in New Zealand."

In his conclusions French J made reference, inter alia, to the judgment of Green C.J. in White v Cassidy (1979) 40 FLR 249 which arose in the context of the Service and Execution of Process Act 1901 in relation to a relevantly similar provision to that presently under consideration, and said (pp 27-8):

"(Green (C.J.) considered the relevance of hardship to the family of the accused. He did not regard harship or prejudice to wife and children alone as relevant considerations for the injustice or oppression must relate to the respondent himself. But insofar as those considerations might affect the respondent, and insofar as they would affect his attempts to start a new life, they were material to the question whether his return would be oppressive. In my opinion, however, where there is a stable and coherent family group, as in this case, there is an element of artificiality in any attempt to identify and distinguish hardship to close family members from hardship to the applicant."

His Honour also made reference to the speech of Lord Diplock in Kakis v Republic of Cyprus (1978) 1 WLR 779 and in particular to a passage from p 783 of the report dealing with the question of delay not attributed to the accused person. He then continued (pp 28-31):

"Beyond these fairly broad statements of principle to which I have referred, however, each case will turn on its own facts and reference to other decisions in other cases is of limited utility. In the present case it is clear that within a short time of his arrival in Perth in April 1988 Hicks knew that he was the subject of a police inquiry in New Zealand. It is difficult to escape the conclusion that his decision to remain in Perth was inspired by the fact of that inquiry. While there is evidence that he was told the matter was not urgent and could 'wait', he was never informed that the inquiry had been abandoned. I am also satisfied that he was aware that extradition was a possibility as Nicholls had indicated as much to his solicitor, Twiss and Hicks himself had discussed the topic of extradition in his one conversation with Nicholls.

On the other hand there was a delay of some 14 months between Hicks' last conversation with Nicholls and the laying of the information that grounds the warrant under which he has been arrested in this case and that delay was not really explained on the evidence. It was some six months or so after Hicks' last conversation with Nicholls that he brought his wife and daughter to Perth. He said that he did so because following discussions with his solicitor, he believed he was 'completely in the clear'. There was no evidence from the solicitor to indicate that there was any basis for that belief and it is inconsistent with the otherwise uncontradicted evidence of Nicholls as to his conversations with the solicitor. In my opinion Hicks was never entitled to assume that the matter was closed.

I am required in the light of the Full Court decision in this case to take into account whether 'for any reason' it would be 'unjust, oppressive or too severe a punishment' for Hicks to be returned to New Zealand. There are three principal areas of concern which bear upon the issue. They are:

1. The effect of return to New Zealand upon his business.

2. The effect upon his family.

3. The effect upon his health. I am not satisfied that if returned to New Zealand, Hicks would have anything other than a fair trial according to laws and protective procedures very similar to those applicable in Australia. There is no evidence that the delay in proceedings has had any effect on his ability to obtain a fair trial. If there were any such effect, the New Zealand courts have procedures available to consider and deal with it.

I accept that the obviously marginal business operation presently conducted by Hicks would, to all intents and purposes, collapse upon his surrender to New Zealand. And I am satisfied that there would be considerable inconvenience and hardship to his family if he were so returned. I do not doubt that he would share in that hardship and inconvenience. Further, I accept that Hicks' health is not good and that he faces the possibility of a surgical procedure which will significantly degrade his quality of life. On the other hand, the evidence does not support the inference that that condition will be worsened upon his return to New Zealand. Nor am I satisfied on the rather general evidence provided, that he and his wife would be left destitute by the New Zealand social welfare system.

Having regard to all of these matters it is, in my opinion, Hicks' own conduct in remaining out of New Zealand when he knew he was the subject of inquiry and possible extradition proceedings, which has, in large part, given rise to the difficulties faced by his business and his family. I also have regard to the seriousness of the charge in respect of which extradition was sought. In all the circumstances, it would not be unjust nor oppressive nor too severe a punishment to return him to New Zealand."

THE APPEAL

The grounds raised in the notice of appeal (as amended) are:

"1. Having accepted that:

(a) The obviously marginal business operation presently conducted by Hicks would to all intents and purposes collapse upon his surrender to New Zealand.

(b) There would be considerable inconvenience and hardship to his family if he were so returned.

(c) He (Hicks) would share in that hardship and inconvenience.

(d) Hicks' health is not good and he faces the possibility of a surgical procedure which will significantly degrade his quality of life. The Learned Judge erred in not finding that it would be unjust, oppressive or too severe a punishment for the Appellant to be returned to New Zealand.

2. The Learned Judge erred in failing to accept the uncontradicted evidence of the Appellant that the Appellant and his wife would be left destitute by the New Zealand social welfare system and thereby erred in not finding that it would be unjust, oppressive or too severe a punishment for the Appellant to be returned to New Zealand.

3. Having accepted that where there is a stable and coherent family group as in this case there is an element of artificiality in any attempt to identify and distinguish hardship to close family members from hardship to the Appellant the Learned Judge erred in failing to accept that it would be unjust, oppressive or too severe a punishment for the Appellant to be returned to New Zealand.

4. The Learned Judge having accepted that:

(a) the Appellant had suffered corporate financial professional failures in New Zealand prior to coming to Perth;

(b) the Appellant arrived in Perth before being aware that he was the subject of a Police enquiry;

(c) the Appellant re-built his financial and professional position whilst in Perth;

(d) there was a delay of some 14 months between the Appellant's last conversation with the New Zealand police officer and the issue of the warrant and that delay was not really explained on the evidence;

(e) there would be considerable inconvenience and hardship to the Appellant and to his family if he were returned to New Zealand; such findings are inconsistent with the Learned Judge's opinion that it was the Appellant's own conduct in remaining out of New Zealand when he knew he was the subject of enquiry and possible extradition proceedings which has in large part given rise to the difficulties faced by his business and his family. The Learned Judge should have concluded that the explanation for the Appellant's remaining out of New Zealand was the reasons pleaded in sub-paragraphs (a)-(e) hereof and in the circumstances the Learned Judge erred in failing to accept that it would be unjust, oppressive or too severe a punishment for the Appellant to be returned to New Zealand."

There is no need to refer to judicial precedent to support the proposition that the onus of satisfying the magistrate at first instance and the judge upon review, rests upon the accused person. The benefit of subsection 34(2) is available only "(i)f the magistrate is satisfied by the person". Nor can there be any question that in the application of the subsection, (as French J said) "each case will turn on its own facts".
As to ground 1, it is beyond question that the surrender of the appellant to New Zealand would cause his business to collapse and that the appellant and his family would suffer hardship. There is however nothing in the evidence or in the judge's findings to support the proposition that the state of the appellant's health would be adversely affected by his surrender.
Ground 3 seems to merely express more precisely the basis for the conclusions set out in 1(b) and (c).
Ground 4 in effect attacks the findings that the appellant's decision to remain in Perth was inspired by the fact of the police inquiry in New Zealand and that the appellant's own conduct in remaining out of New Zealand when he knew he was the subject of inquiry and possible extradition proceedings, in large part, has given rise to the difficulties faced by his business and his family. The evidence before the judge was clearly capable of raising by inference the conclusions of fact expressed in the reasons. Whilst there is no basis to suggest other than that the appellant left New Zealand unaware of the complaint made to the police on 18 March 1988, his conduct in deciding to stay in Perth after he became aware of the police inquiry and his refusal to disclose his whereabouts to the police is indicative of the fact that he made a conscious decision at an early stage to avoid involvement in the inquiry. His subsequent conduct in cementing himself into the business community of Perth was undertaken in awareness of the police inquiry and of the possibility of extradition proceedings. The judge's conclusion that in large part the appellant's own conduct has given rise to the difficulties faced by his business and family was clearly open on the evidence.
Ground 2 attacks the judge's conclusion that he was not satisfied on the rather general evidence provided, that the appellant and his wife would be left destitute by the New Zealand social welfare system. In his affidavit of 2 April 1991 the appellant deposed to his understanding of the effect of what he described as "a very recent and radical change" in the New Zealand social welfare system. His conclusion is that if he were forced to return to New Zealand he and the other members of his family will be unable to obtain employment and will be utterly destitute. In his reasons French J referred to this evidence in these terms:

"Hicks made reference to the New Zealand social welfare system. He would face a 6 month qualifying period in New Zealand before he could obtain unemployment benefit and would have no assets or income from Australia and nowhere to live. I do not accept this as anything more than his opinion of the current availability and conditions of social welfare benefits in New Zealand."

The express conclusion reached by the judge on this question indicates that he did not reject the appellant's affidavit evidence but rather, because of its very general nature, found it to lack sufficient persuasion to be probative of the facts asserted. It is common cause that the appellant was last in New Zealand in April 1988. His wife left there in June 1988. The changes to which his affidavit refers are said to be very recent and to have come into effect on 1 April 1991. There is nothing in the affidavit to identify the deponent's means of knowledge of the matters deposed to nor is the information supplied so comprehensive as to lead to the conclusion that all of the relevant details of the scheme have been exhaustively canvassed. With respect, it seems that the judge's response to this evidence was entirely appropriate.
In addressing the question of whether he was satisfied that for any (other) reason, it would be unjust, oppressive or too severe a punishment to surrender the appellant to New Zealand the judge did not attempt to separate what appear to be 3 separate elements in the collocation "unjust, oppressive or too severe a punishment".
Reference was made to a frequently cited passage from Lord Diplock's speech in Kakis v Republic of Cyprus at pp 782-783 where His Lordship said in relation to an analogous provision of the Fugitive Offenders Act 1967 (UK):

"'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 harship 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 not be fair."

Some years before the decision in Kakis the Australian Parliament passed the Extradition (Commonwealth Countries) Act 1966, section 27 of which is in similar, but not identical, terms to subsection 34(2) of the present Act. The aditional words "or too severe a punishment" appear in section 27 and this apparently for the first time in Australian legislation although they appeared in the Fugitive Offenders Act 1881 (UK) which applied in Australia until the passing of the Extradition (Commonwealth Countries) Act 1966. They do not appear in the corresponding provision of the Service and Execution of Process Act 1901 (namely subsection 18(6)). It is not without interest that in moving the second reading of the Bill which became the Act the Minister said:

"The Bill contains a special part which governs extradition relations with New Zealand. Our close ties with that country have made appropriate a reciprocal regime which bears a very close similarity to the extradition relations between the various Australian States and Territories contained in the Service and Execution of Process Act 1901. Fugitives are moved between Australia and New Zealand by a process based on the backing of warrants by magistrates. The whole process is normally handled by the police in exactly the same way as an interstate extradition would be handled. The Bill's only innovation in this area is to permit temporary surrender to New Zealand."

There are grounds for believing that the words "too severe a punishment" add nothing to the meaning of "unjust or oppressive" particularly in the context of proceedings for the extradition of a person who has not been convicted of an offence. Punishment is a term normally associated with the consequences of conviction and seems to be an inappropriate matter to warrant consideration in relation to the extradition of a person who has merely been charged with an offence. In any event, it is difficult to contemplate a circumstance in which the mere surrender of a person under subsection 34(1) could be properly classified as punishment in the ordinary sense. If, however, the term punishment is used in the sense of imposing hardship then it seems that it adds nothing to the concept of oppressiveness. Accepting, as Lord Diplock said that:

".... between them (i.e. 'unjust' and 'oppressive') they would cover all cases where to return him would not be fair

it is not surprising that there appears to be no Australian authority specifically relating to the third arm of the collocation "unjust, oppressive or too severe a punishment".

CONCLUSION

In this appeal the appellant does not seek to identify the hardship which he says will result from his surrender to New Zealand otherwise than by reference to the combination of "unjust, oppressive or too severe a punishment". If "unjust or oppressive" are terms capable of covering the whole range of circumstances which may be said to be unfair, it is clearly appropriate that in relation to the exercise of power under subsection 34(2) the magistrate, or the Court upon a review application, should apply to the facts as found the test of whether in the circumstances it would be unfair to surrender the accused person. The only construction that can be placed on French J's ultimate finding is that he was not satisfied that it would be unfair to surrender the appellant to New Zealand. He has not been shown to have misconceived any rule or principle of law nor to have overlooked any relevant evidence.
There is no basis upon which it can be said that the judge erred in his assessment of the facts. He regarded the appellant's decision to remain in Australia, inspired as it was by the fact that a police inquiry had been instituted in New Zealand, and made after he became aware of the inquiry, as having in a large part given rise to all of the anticipated hardships now said likely to be consequential upon his return to New Zealand. Having made that critical finding of fact in relation to the appellant's decision not to return to New Zealand, and having assessed the other evidence relied upon to establish the hardship which is said will necessarily flow from his surrender, the judge remained unsatisfied that for any reason it would be unjust, oppressive or too severe a punishment to order the appellant's surrender. It has not been shown that the judge erred in any way and accordingly the appeal should be dismissed.

[1991] FCA 423

24 JULY 1991