Kenneally v New Zealand

The appellant, Kevin Patrick Kenneally, challenged a decision of the Supreme Court of New South Wales which ordered his extradition to New Zealand. The Supreme Court had reviewed the decision of a magistrate who had made orders for the appellant’s surrender under s 34(1)(c) and (d) of the Extradition Act 1988 (Cth). The Supreme Court dismissed the appeal against the magistrate’s decision. The appellant then appealed to the High Court, contending that the magistrate should not have made the orders because the evidence supporting the charges was so weak as to render extradition unjust. The central legal issue was whether the evidence in support of the charges was sufficient to warrant the making of an order for surrender, and if not, whether such insufficiency warranted a refusal of extradition under s 34(2) of the Extradition Act 1988 (Cth). The Court found that the evidence did not support the charges laid, and therefore the magistrate should not have made the orders for surrender. The Court concluded that the evidence was so weak that extradition would be unjust, oppressive, or too severe a punishment. The Court held that the words of s 34(2) of the Extradition Act 1988 (Cth) suggest that extradition should be refused where the evidence taken at its highest for the prosecution fails to disclose a prima facie case. The Court allowed the appeal, quashed the orders for surrender, and directed that the appellant be released from custody. The Court also ordered that the respondent pay the appellant’s costs.