Kisun v New Zealand

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FEDERAL COURT OF AUSTRALIA

Kisun v New Zealand [2024] FCA 224  

File number: NSD 1297 of 2023
Judgment of: PERRAM J
Date of judgment: 12 March 2024
Catchwords: EXTRADITION – where Applicant seeks review under s 35 of the Extradition Act 1988 (Cth) of magistrate’s decision to surrender him to New Zealand – where Applicant faces charges of historical child sexual abuse – where Applicant is elderly and cognitively impaired – whether delay unjust or oppressive within meaning of s 34(2)
Legislation:

Extradition Act 1988 (Cth) ss 34(2), 35(6), 38(5)

Extradition Regulations 1988 (Cth) r 4

Child Protection (Offenders Registration) Act 2000 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 5

Crimes Act 1961 (NZ) s 140(1)
Cases cited:

Bannister v New Zealand [1999] FCA 362; 86 FCR 417

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

Hicks v Martin (1990) 27 FCR 416

Kisun v New Zealand [2023] FCA 1576

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

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

R v Kisun (No 5) [2018] ACTSC 311

White v Cassidy (1979) 40 FLR 249
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 138
Date of hearing: 18 January 2024
Solicitor for the Applicant: Greg Walsh & Co
Counsel for the First Respondent: Mr T Muir
Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions
Counsel for the Second Respondent:  The Second Respondent did not appear

ORDERS

NSD 1297 of 2023
BETWEEN:

DAVID PETER KISUN

Applicant
AND:

NEW ZEALAND

First Respondent

MAGISTRATE CHRISTOPHER WAYNE MCROBERT

Second Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

12 MARCH 2024

THE COURT ORDERS THAT:

1.The Applicant’s originating application be dismissed with costs as taxed, assessed or agreed.

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


REASONS FOR JUDGMENT

PERRAM J:

Introduction

  1. The question in this case is whether the Applicant, Mr Kisun, should now be surrendered to New Zealand to face 11 charges of historical sex offending. A magistrate sitting at Nowra concluded that he should be and the question for this Court on a review by way of rehearing under s 35(6) of the Extradition Act 1988 (Cth) (‘the Extradition Act’) is whether that conclusion should be affirmed or quashed.

  2. Section 34(1) and (2) of the Extradition Act provides:

    (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 or eligible Federal Circuit Court Judge by or on behalf of the person or New Zealand for proceedings to be conducted under this section;

    the magistrate or Judge shall, unless the magistrate or Judge…

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Details
Case
[2024] FCA 224
Decision Date

CaseChat Overview and Summary

The case of Kisun v New Zealand involved an application for review of a magistrate’s decision to surrender the applicant to New Zealand, where he faces charges of historical child sexual abuse. The applicant, Mr Kisun, is an elderly man who is cognitively impaired. The court had to determine whether the delay in the proceedings was unjust or oppressive within the meaning of s 34(2) of the Extradition Act 1988 (Cth). The central legal issue before the court was whether the delay in the extradition process was so unjust or oppressive as to warrant a review of the magistrate’s decision. This involved assessing the impact of the delay on Mr Kisun’s mental health, the seriousness of the charges against him, and the implications for his family if he were to be extradited.

The court found that the delay was not unjust or oppressive. It noted that Mr Kisun was charged with serious offences of historical child sexual abuse, which required careful investigation and coordination between Australian and New Zealand authorities. The court considered that the delay was a result of the need to investigate current risks to children, which was a legitimate priority for the New Zealand police. Furthermore, the court found that Mr Kisun’s cognitive impairment and mental health issues, while significant, did not render the delay oppressive. The court also acknowledged the difficulty his family would face in relocating to New Zealand to care for him but concluded that this was a consequence of the family’s relationship with him rather than an undue burden caused by the delay itself.

The court concluded that the magistrate’s decision should not be quashed, and the application for review was dismissed with costs. This decision underscored the importance of balancing the rights of the accused with the need to investigate and prosecute serious crimes, particularly those involving historical child sexual abuse. The court recognised the complexity of such cases, which often involve extensive investigations and coordination between multiple jurisdictions. The final order of the court was that the applicant’s originating application be dismissed with costs as taxed, assessed, or agreed.

Orders

Orders of the court

1. The Applicant’s originating application be dismissed with costs as taxed, assessed or agreed.

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

Background

Background to the litigation

I have concluded that the learned magistrate’s decision should not be quashed.Facts Mr Kisun was born in 1946 as the sixth of eleven children and is presently 78 years old. He grew up in Suva in Fiji and completed his schooling in New Zealand and Fiji. He became a Marist Brother at some point and taught in New Zealand. He left the order after four years and in 1976 became a teacher at Marist College in Canberra where he taught until 1985. He married his wife in 1979, with whom he has two daughters. Subsequently he taught at a Catholic primary school at Merrylands in Sydney for 19 years. He retired from teaching at the age of 68 which would have been in 2014. In 2016 Mr Kisun was arrested by Australian Capital Territory (‘ACT’) Police and charged with indecent assault of a student at Marist College Canberra. The charges stemmed from statements that were made to the Royal Commission into Institutional Responses to Child Sexual Abuse. There were three charges. At a trial in 2016 he was acquitted of one count and the jury could not agree a verdict on the other two. During this time Mr Kisun went to live with his daughter at Campbelltown who supported him during the criminal trial process. Apparently this was as a result of his separation from Mrs Kisun. From 7 March 2017 Mr Kisun consulted Dr Angela Parasher, to whom he had been referred by his general practitioner, Dr Ahmed, for psychological assessment and treatment. Mr Kisun attended Dr Paresher 24 times between 7 March 2017 and 30 October 2018. When Dr Paresher began treating Mr Kisun it was her view that, in terms of the Diagnostic and Statistical Manual of Mental Disorders (‘DSM-5’), he was suffering from Major Depression, Anxiety with Panic Disorder Symptoms along with an Adjustment Disorder. There was also a significant increase in his symptoms of Major Depressive Disorder. It was Dr Paresher’s opinion as at 30 October 2018 that Mr Kisun’s symptoms were linked to the charges he was then facing before the Supreme Court of the ACT. A second trial took place in October 2018. The two alleged victims (‘Victim A’ and ‘Victim B’) both gave tendency evidence in this trial. Both were students at the school in Wellington where Mr Kisun taught in the late 1960s and early 1970s. Mr Kisun was convicted on four counts and acquitted on one. He was sentenced by way of suspended sentence for 3 years and 6 months on 2 November 2018: R v Kisun (No 5) [2018] ACTSC 311. It is apparent from the sentencing remarks that at all times Mr Kisun remained on bail until he was sentenced: [25]. The formal order imposing the suspended sentence was: Each of the sentences is wholly suspended upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years and six months. That period expired on 2 May 2022. Mr Kisun’s daughter says that her father was a broken man after his conviction and that his health deteriorated. On 2 November 2018 he was placed on the Child Protection Register. Having been placed on that register Mr Kisun was required under the Child Protection (Offenders Registration) Act 2000 (NSW) to report various matters to the police including if he changed motor vehicle and if more children were born in his family.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In order to care for Mr Kisun, it will be necessary for the family to move someone to New Zealand. It will also be necessary to obtain accommodation which will cost money. I do not consider that the younger daughter will be able to assist. For Mrs Kisun or her older daughter to help Mr Kisun in this situation would be, in my view, extremely difficult and burdensome for them. However, having regard to their family relations, I do not think they will abandon him and I therefore find that his surrender will place them under very significant strain if he is admitted to bail. Conclusions on the effects of extradition I make these findings:(a)Removal from Australia to New Zealand by plane is likely to worsen Mr Kisun’s mental condition. I would rate this effect, however, as relatively minor since the flight is only a couple of hours.(b)If Mr Kisun is refused bail, his transfer to the New Zealand prison system is likely to worsen his cognitive impairment.(c)If Mr Kisun is admitted to bail, either he will be unable to look after himself or great strain will be placed on his family in relocating to New Zealand to look after him.Delay Mr Kisun is charged with 11 counts of committing an indecent act with a boy under the age of 16 contrary to s 140(1)(b) of the Crimes Act 1961 (NZ) . Five counts relate to Victim A and six to Victim B. The two alleged victims were boys attending the Marist Brothers Newtown School in Wellington at which Mr Kisun was both a Marist Brother and a teacher. The school catered for boys from grade three to six. Mr Kisun was Victim A’s main teacher for one year during the period of the charges and likewise for Victim B. It is not necessary to detail the 11 charges against him. The offences charged are very serious. In 1999, Victim A informed the New Zealand Catholic Church Archdiocesan Protocol Committee that he had been abused by Mr Kisun. Victim A did not approach the police until April 2017 when he wrote a letter to them enclosing a handwritten letter he had penned in 2006. A file was opened by Detective Sergeant Warren in May 2017. There is a team of police in the Wellington area who investigate matters involving abuse against children. As a matter of work allocation, this team directs its principal focus to children who are currently at risk. Accordingly, if the offences are historical, while a file is opened, the investigation is only advanced as far as time permits working around investigations of children who are still at risk. Victim A was formally interviewed on 22 June 2017. He gave an account of having been repeatedly sexually abused by Mr Kisun. Detective Sergeant Warren then interviewed other former students of the school. As a result of this she identified Victim B as another possible victim. In August 2017, Detective Sergeant Warren contacted Sergeant David Williams of the ACT Police. He was the officer in charge of the prosecution of Mr Kisun on child sex offences in the ACT Supreme Court. In October 2017, Detective Sergeant Warren began communicating with Victim B and he was formally interviewed on 31 October 2017. In that interview he gave details of regular sexual abuse by Mr Kisun between 1969 and 1971. Detective Sergeant Warren then updated the ACT Police with the fact that Victims A and B had now made formal complaints about Mr Kisun. As a result of this the prosecutors before the ACT Supreme Court obtained agreement from Victims A and B to give tendency evidence in Mr Kisun’s trial before that Court.

Ratio Decidendi

Legal Principle Established

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