Kelly v New Zealand

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FEDERAL COURT OF AUSTRALIA

Kelly v New Zealand [2021] FCA 1434  

File number(s): VID 524 of 2021
Judgment of: ANDERSON J
Date of judgment: 19 November 2021
Catchwords: EXTRADITION –  surrender to New Zealand – Extradition Act 1988 (Cth) s 34(2); s 35 – where the applicant seeks review of an extradition decision in the Magistrates’ Court ordering the applicant be surrendered to New Zealand under s 34(1)(c) of the Extradition Act 1988 – where the applicant was convicted in absentia of  46 offences under the Tax Administration Act 1994 (NZ) on 14 September 2015 – where the applicant claims that a lengthy period of time has elapsed since the alleged offences were committed and that her surrender would be unjust and oppressive due to being convicted in absentia – where the applicant seeks a declaration that the warrant for her arrest was not a valid New Zealand warrant for the purposes of the Act (‘the warrant issue’) – application dismissed
Legislation:

Extradition Act 1988 (Cth)

Tax Administration Act 1994 (NZ)

New Zealand Criminal Procedure Act 2011
Cases cited:

Bannister v New Zealand (1999) 86 FCR 417

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616

Direct of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528

Heslehurst v Government of New Zealand [2000] FCA 1311

Heslehurst v Government of New Zealand [2001] FCA 202; 109 FCR 226

Kenneally v New Zealand (1999) 91 FCR 292

Minister for Justice v Adamas (2013) 253 CLR 43

New Zealand v Moloney (2006) 154 FCR 250

New Zealand v Templeton [2017] FCA 745

Newman v New Zealand (2012) 206 FCR 1

Newman v New Zealand (No. 2) (2012) 206 FCR 17
Division: General Division
Registry: Victoria
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs:  98
Date of hearing: 3 November 2021
Counsel for the Applicant:  Mr H Rattray
Solicitor for the Applicant: Sentry Law

 

ORDERS

VID 524 of 2021
BETWEEN:

RAELENE MARY KELLY

Applicant
AND:

NEW ZEALAND

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.Pursuant to s 35(2)(a) of the Extradition Act 1988 (Cth), the Court confirms the orders of Magistrate Bourke made on 30 August 2021.

3.The applicant will pay the respondent’s costs to be assessed by a Registrar of this Court on a lump sum basis if not agreed.

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


REASONS FOR JUDGMENT

ANDERSON J:

APPLICATION

  1. The applicant applies under s 35 of the Extradition Act 1988 (Cth) (Act) for review of an order made by Magistrate Bourke on 30 August 2021 under s 34(1) of the Act to surrender the applicant to New Zealand. The applicant, by her originating application dated 13 September 2021, seeks:

    (1)A declaration that the warrant indorsed by Magistrate Bazzani on 28 February 2020 was not a “New Zealand warrant” within the meaning of s 5 of…

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Details
Case
[2021] FCA 1434
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Australia, seeks review of an extradition decision by the Federal Circuit and Family Court of Australia. The applicant, who was convicted in absentia in New Zealand, contests the validity of the warrant for her arrest and seeks a declaration that the warrant was not a valid New Zealand warrant. The court must determine whether the warrant meets the criteria under the Extradition Act 1988 (Cth) and if the applicant's surrender to New Zealand would be just and oppressive.

The primary legal issues involve the validity of the warrant for the applicant's arrest and whether the applicant's surrender to New Zealand would be unjust and oppressive. The court must consider whether the warrant satisfies the requirements of a "New Zealand warrant" under the Extradition Act 1988 (Cth) and whether the applicant's conviction in absentia and the length of time elapsed since the alleged offences were committed render her surrender unjust and oppressive.

The court examined the warrant and found it to be a valid New Zealand warrant as it satisfied the requirements of section 5 of the Extradition Act 1988 (Cth). The court held that the validity of the warrant was not properly the subject matter of the review under section 35 of the Act, which is a de novo rehearing of the matters before the magistrate. The court found that any challenge to the validity of the warrant is a matter for the New Zealand courts. The court further found that the applicant's surrender would not be unjust and oppressive as the warrant was valid and the applicant had been convicted in absentia after being given reasonable opportunity to attend the trial.

The application for review was dismissed, and the court confirmed the orders of Magistrate Bourke made on 30 August 2021. The applicant is required to pay the respondent's costs to be assessed by a Registrar of this Court on a lump sum basis if not agreed.

Orders

Orders of the court

1. The application be dismissed.

2. Pursuant to s 35(2)(a) of the Extradition Act 1988 (Cth), the Court confirms the orders of Magistrate Bourke made on 30 August 2021.

3. The applicant will pay the respondent’s costs to be assessed by a Registrar of this Court on a lump sum basis if not agreed.

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

Background

Background to the litigation

The applicant applies under s 35 of the Extradition Act 1988 (Cth) (Act) for review of an order made by Magistrate Bourke on 30 August 2021 under s 34(1) of the Act to surrender the applicant to New Zealand. The applicant, by her originating application dated 13 September 2021, seeks:(1)A declaration that the warrant indorsed by Magistrate Bazzani on 28 February 2020 was not a “New Zealand warrant” within the meaning of s 5 of the Act.(2)An order in accordance with s 35(2)(b) of the Act quashing the order of Magistrate Bourke made on 30 August 2021.(3)An order in the nature of mandamus directing any Magistrate or eligible Federal Circuit Court Judge to order the release of the applicant in accordance with s 35(b)(i) of the Act.RELEVANT BACKGROUND FACTS The facts set out in the applicant’s concise statement dated 13 September 2021 were not in dispute between the parties and are as follows. The applicant is a citizen of Australia. The applicant is not a citizen of New Zealand and has never held a New Zealand passport. Between approximately January 2007 and March 2015, the applicant practised as a barrister in New Zealand. From November 2010 until approximately September 2013, the applicant practised as a barrister in New Zealand through the New Zealand-registered entity “Kelly Chambers Limited”. On 22 September 2014, the applicant was charged by New Zealand’s Inland Revenue Department with a number of criminal offences under the Tax Administration Act 1994 (NZ) (NZ Tax Act). The applicant first appeared in relation to the charges on 4 November 2014 and was granted bail unopposed. On 27 February 2015, Judge Crosbie of the Dunedin District Court imposed a condition on the applicant’s bail that she reside at 508 Highgate, Dunedin. On a date prior to 1 May 2015, the applicant’s trial was set down for 14 September 2015. On 1 May 2015, the applicant applied for removal of the residence condition on her bail, or that an alternative place of residence be specified, so that she could relocate to Australia. On a date after 1 May 2015, the Dunedin District Court varied the applicant’s bail to enable her to relocate to Australia. Subsequent to the variation of her bail conditions, and prior to 10 September 2015, the applicant relocated to Australia. On 10 September 2015, the applicant sent an email to the Dunedin District Court advising that her mental health had deteriorated, and this meant that she would be unable to attend at the trial scheduled to commence on 14 September 2015. On 14 September 2015, the applicant did not appear at her trial at the Dunedin District Court scheduled to commence that day. On 14 September 2015, Judge Kellar of the Dunedin District Court determined that the trial should proceed in the applicant’s absence and published a minute of his Honour’s reasons (Minute) for doing so as follows:[1]Ms Kelly is charged with a significant number of offences under the Tax Administration Act 1994. She does not appear on 10 September 2015 she sent to the Court an email, the contents of which I will return to in a moment.[2]The matter has had something of a protracted history, to circumvent the matter, I refer by reference to Judge Crosbie’s minutes of 19 and 27 February and 6 March 2015 respectively. As to the latter of those minutes, the Judge directed that the setting down of trial be reviewed on 28 July at 9.00 am. Ms Kelly signed a bail bond to appear as at that date.[3]She has had various counsel throughout the course of the prosecution, most of whom have had only limited instructions. Due to the inability of her most recent counsel to obtain meaningful instructions that counsel sought and was granted leave to withdraw. Since then, Ms Kelly has been incommunicado until the email of 10 September 2015.[4]The Court has endeavoured to make contact with Ms Kelly through her known email address one of which was returned, but one of which until 10 September elicited no response.[5]On 28 August 2015 at my direction the registrar sent to Ms Kelly an email asking her to contact the Court urgently in relation to the trial of today. Nothing was heard until her email of 10 September.[6]Under s 122 Criminal Procedure Act 2011 the Court may proceed in the absence of the defendant in certain circumstances. Those circumstances exist. She is charged with category 3 offences, she is required to be present. The prosecutor, the form of Mr Tasker has attended. Ms Kelly does not.[7]I must be satisfied that Ms Kelly has no reasonable excuse for her non-attendance. Her email the contents of which I will not go into in detail, but as a matter of Court record refers to a moderate to severe anxiety disorder. Nothing to which she refers in the email supported by any independent information. She states however, that she has had help even to write the email and has not had an opportunity of obtaining information to support the contents of it. That simply defies belief.[8]Ms Kelly has had months to provide information as to her reasons for non-attendance. Indeed, her email of 10 September 2015 does not seek an adjournment of the trial, it simply explains or endeavours to, why she has failed to appear.[9]I must consider the matters in s 121 subs (4) Criminal Procedure Act. I have had regard to her stated reasons for her absence.[10]Throughout the course of management of the trial, Ms Kelly either herself or through her counsel has not judicated any matters that are in dispute. If I was to adjourn the trial, the trial would be some time away. There are a large number of witnesses and a significant number of exhibits. It would be a great inconvenience to those witnesses for the matter not to proceed.[11]The charges are relatively serious. Some of them carry a maximum penalty of five years’ imprisonment and/or a fine of $50,000. It is not therefore contrary to the interests of justice to proceed, therefore the trial will proceed in Ms Kelly’s absence.

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

The respondent submits that it is no part of the magistrate’s function under s 34 of the Act to decide whether the March 2019 warrant should have been indorsed by Magistrate Bazzani on 28 February 2020. The respondent submits that validity of the March 2019 warrant is not properly the subject matter of the review under s 35 of the Act which is a de novo rehearing of the matters before the magistrate, namely whether there are grounds under s 34(2) of the Act for refusing to surrender the applicant to New Zealand.CONSIDERATION OF FIRST GROUND I reject the applicant’s contention that, because of the admitted defects in the March 2019 warrant, the warrant is not a “New Zealand warrant” under s 55 of the Act. The March 2019 warrant is a “New Zealand warrant” as the warrant satisfies the requirements of s 5 to be a “New Zealand warrant”. The first requirement to be a “New Zealand warrant” is that the warrant purports to be issued by a court, a judge, a magistrate or an officer of a court of New Zealand. This requirement was satisfied as is conceded by the applicant. The second requirement to be a “New Zealand warrant” is that the March 2019 warrant is for the arrest of a person (the applicant) accused or convicted of an offence against the law of New Zealand. This requirement is satisfied as the applicant concedes that she was convicted of offences against the law of New Zealand. The applicant concedes that she was convicted of the 15 charges identified in the warrant by the Code 9375 under s 143B of the NZ Tax Act. The applicant, in addition, concedes she was convicted of 31 offences against s 143A(1)(d) of the NZ Tax Act. These facts, which are admitted by the applicant, are sufficient to satisfy the requirements of s 5 of the Act and result in the March 2019 warrant being for the purposes of the Act a “New Zealand warrant”. The applicant, in her submissions, also concedes that the March 2019 warrant was indorsed by a magistrate, namely, Magistrate Bazzani, in accordance with s 28 of the Act. I reject the applicant’s submission that the defects in the warrant, as identified by the applicant, render the March 2019 warrant invalid and prevent the March 2019 warrant being a New Zealand warrant as defined by s 5 of the Act. I accept the respondent’s submission that where, as in this case, the applicant has made a request under s 34(1)(b) of the Act for a proceeding to be conducted under that section, the issue is whether the applicant was arrested under an “indorsed New Zealand warrant” within the meaning of s 34(1)(a)(i) of the Act. I also accept the respondent’s submission that s 34(1)(a)(i) operates on the historical fact of the decision by Magistrate Bazzani on 28 February 2020 to indorse the March 2019 warrant which decision has not been challenged by the applicant. It was no part of Magistrate Bourke’s function under s 34(1)(b) to rule on the validity of the March 2019 warrant which was issued by New Zealand District Court Judge M A Crosbie. Similarly, in conducting this rehearing pursuant to s 35 of the Act, it is no part of my task to rule on the validity of the March 2019 warrant. Any challenge to the validity of the March 2019 warrant is properly a matter for the New Zealand courts.