Kenneally v New Zealand - [1999] NSWSC 869

CITATION: Kenneally v New Zealand [1999] NSWSC 869

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 10696/99

HEARING DATE(S): 25/8/99-26/8/99

JUDGMENT DATE:
31 August 1999

PARTIES :

Kevin Patrick Kenneally (Plaintiff)
New Zealand (Defendant)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Ms M.S. Jerram

COUNSEL : G.J. Jones (Plaintiff)
M.A. Wigney (Defendant)

SOLICITORS: Leigh Johnson (Plaintiff)
Commonwealth Director of Public Prosecutions (Defendant)

CATCHWORDS: Extradition to New Zealand; order by magistrate for surrender to New Zealand; application for review; whether accusation not made in interests of justice; Extradition Act 1988 (Commonwealth) ss 28, 32, 34 and 35

ACTS CITED: Extradition Act 1988

CASES CITED: New Zealand v Venkataya (1995) 57 FCR 141
Daemar v Parker (1975) 7 ALR 564
Bates v McDonald (1985) 2 NSWLR 89
Brackenridge v New Zealand (unreported, Court of Appeal (Qld), 2 October 1988)
Bannister v New Zealand [1999] FCA 362
Willoughby v Eland (1984-85) 59 ALR 147
Butera v Director of Public Prosecutions (1987) 164 CLR 180

DECISION: Order of magistrate confirmed; bail revoked; plaintiff to pay defendant's costs of summons.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Tuesday 31 August 1999

10696/99 KEVIN PATRICK KENNEALLY v NEW ZEALAND
JUDGMENT
1   HIS HONOUR: This is a summons for review of orders made by a magistrate under s 34 of the Extradition Act 1988 (Commonwealth). The plaintiff, Kevin Patrick Kenneally, named the Commonwealth Director of Public Prosecutions as defendant, but it was conceded that “New Zealand” should be substituted as defendant and an order to that effect was made by consent. The summons sought an order for review pursuant to s 35 of the Extradition Act but I was asked to treat the matter as a review and the hearing proceeded on this basis.

Part 3 of the Extradition Act

2   At the outset it is desirable that I consider the relevant provisions of Part 3 of the Extradition Act which deals exclusively with extradition from Australia to New Zealand. By way of background to it, I refer to the Second Reading Speech for the relevant Bill, which is conveniently set out in New Zealand v Venkataya (1995) 57 FCR 151 at 163-164:

"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."

3   The first of the provisions in Pt 3 to which I refer is s 28. Where an application is made in…

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.

Keep reading for free

Create a free CaseChat account to read Kenneally v New Zealand and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWSC 869
Decision Date: 31 August 1999

CaseChat Overview and Summary

The case before the court involved an application by Kenneally to review an order made by a magistrate for his surrender to New Zealand under the Extradition Act 1988. Kenneally, an Australian citizen, was facing extradition to New Zealand to answer to criminal charges. The matter was brought before the court to determine whether the magistrate's order was legally sound, specifically if the accusation against Kenneally was made in the interests of justice.

The primary legal issues before the court were whether the magistrate had correctly applied the provisions of the Extradition Act 1988 when making the order for Kenneally's surrender. Specifically, the court had to consider sections 28, 32, 34, and 35 of the Act, which pertain to the procedure for surrendering an individual for extradition and the criteria for making such an order. The court needed to assess if the magistrate had adhered to these statutory requirements and if the interests of justice were properly considered in making the decision.

The court examined the magistrate's decision in light of the statutory framework provided by the Extradition Act 1988. The court concluded that the magistrate had correctly followed the legal process as outlined in the Act and had properly considered the interests of justice. The court found that the accusation against Kenneally was made in accordance with the provisions of the Act, and there was no basis to interfere with the magistrate's order. Consequently, the application for review was dismissed, and the order for Kenneally's surrender to New Zealand was upheld.

In light of the above, the court made no further orders as the application for review was dismissed. The magistrate's order for Kenneally's surrender to New Zealand remained in effect, and he was to be handed over to the authorities of New Zealand to answer to the criminal charges against him.

Orders