Kisun v New Zealand

FEDERAL COURT OF AUSTRALIA

Kisun v New Zealand [2024] FCAFC 118   

Appeal from:

Kisun v New Zealand [2024] FCA 224

File number(s):

NSD 300 of 2024

Judgment of:

BROMWICH, ABRAHAM AND HALLEY JJ

Date of judgment:

10 September 2024

Catchwords:

 EXTRADITION – appeal against decision of a Federal Court judge affirming decision of a Magistrate not to prevent surrender to New Zealand for extradition – HELD: no error established – appeal dismissed with costs  

Legislation:

Extradition Act 1988 (Cth) ss 34(1), (2), (2)(c), 35(1), (3), (6)(d), (6)(e)

Cases cited:

Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; 98 ALJR 719

Coates-Kelly v New Zealand [2022] FCAFC 131; 294 FCR 422

Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857

New Zealand v Johnston [2011] FCAFC 2; 274 ALR 509

New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250

Newman v New Zealand [2012] FCAFC 133; 206 FCR 1

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

53

Date of hearing:

22 August 2024

Counsel for the Appellant:

Mr J C Sheller SC and Mr N J Carey

Solicitor for the Appellant:

Greg Walsh & Co

Counsel for the First Respondent:

Mr T Muir

Solicitor for the First Respondent:

Commonwealth Director of Public Prosecutions

ORDERS

NSD 300 of 2024

BETWEEN:

DAVID PETER KISUN

Appellant

AND:

NEW ZEALAND

First Respondent

MAGISTRATE CHRISTOPHER WAYNE MCROBERT

Second Respondent

ORDER MADE BY:	BROMWICH, ABRAHAM AND HALLEY JJ
DATE OF ORDER:	10 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1. This is an appeal from a decision of a judge of this Court, dismissing an application to review a decision made by a magistrate that the appellant, Mr David Peter Kisun, should be surrendered to New Zealand, the first respondent, pursuant to s 34(1) of the Extradition Act 1988 (Cth). References to statutory provisions in these reasons will be to those in the Extradition Act unless otherwise stated.

2. The appellant has been charged in New Zealand with 11 counts of historical sexual abuse offences against two children, arising from his time as a teacher and Marist Brother at a school in Wellington, New Zealand. The offences are alleged to have taken place in the period from about 1969 to about 1971.

3. The proceeding before the primary judge was a review by way of rehearing: s 35(1) and (6)(d). By reason of s 35(3) and (6)(e), the appeal from the primary judge’s decision to this Court is an appeal in the strict sense, with the role of this Court being limited to…