Moloney & Anor v New Zealand

[2006] HCATrans 569

[2006] HCATrans 569

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S348 of 2006

B e t w e e n -

RODGER WILLIAM MOLONEY

First Applicant

RAYMOND JOHN GARCHOW

Second Applicant

and

NEW ZEALAND

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 OCTOBER 2006, AT 2.16 PM

Copyright in the High Court of Australia

MR T.A.GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR J.C. SHELLER.  (instructed by Greg Walsh & Co)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR I.D. BOURKE, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Game.

MR GAME:   We sent up a document this morning which is a short outline of our argument.

GLEESON CJ:   We have read that, thank you.

MR GAME:   Before I come to Justice Madgwick’s judgment in the Full Court I wanted to say a word or two about the relevant statutory provisions.  Could I take your Honours to section 34 first.  Subsection (1) basically means that if the warrants are backed then the person gets extradited, so there is none of the procedure required for extradition to other countries, such as statements of the conduct and the like.  Subsection (2), in effect, is the, shall I say, protection which a proposed extraditee has.

May I just pause there and say that when subsection (2) refers to “the magistrate”, by the time it comes to this Court it would be appropriate to regard Justice Madgwick as having sat in the shoes of the magistrate because of the language of section 35(6)(d), that is to say it is a true rehearing and he can receive further evidence.  So, for the present purposes, we are looking, in effect, as Justice Madgwick as exercising the function carried out under subsection (2).

Now, these provisions have a strange history.  Some of them are taken from the Service and Execution of Process Act and some of them are taken from the Fugitive Offenders Act.  The critical words that we are looking at here are subsection (2)(c) and to a limited degree the words “or for any other reason”. 

GLEESON CJ:   What has to be unjust is that it is unjust to surrender.

MR GAME:   That is correct, but – and I do not mean to be facetious about this – the lengthy period itself – and I do not mean simpliciter – could provide the foundation for that injustice to surrender and which leads me to the next thing I was going to say.  The words that came before that in the legislation were the words “the passage of time” and they seem to really have the same effect.  The “lengthy period” language clearly does not mean simply peeling off the years as it were and saying 30 years or 40 years.  There has to be some content to it and the content presumably is found in the forensic context and in what Justice Mahoney described in Binge v Bennett as the nature and incidence of the justice system to which the person is to be extradited.

GUMMOW J:   Yes, well, let me tell you I am not at all satisfied with that case, within Australia.  You do not have to persuade us of it, but it just seems a very odd result to me.

MR GAME:   No, your Honour, I understand that there is a much larger question in this case about whether or not Bannister and Binge v Bennett are correct. 

GUMMOW J:   Anyhow, there was not an actual finding in that case.  What the case decided is that evidence could be led, did it not, and it had to go back?

MR GAME:   Evidence could be led about whether or not the jury empanelment would be a fair exercise in Queensland, but the point I am actually trying to make at the moment is a short one which is that – and it may be quite contentious ultimately, but there must be some content to what is meant by “a lengthy period has elapsed”.  Now, we say in this case really all of the considerations except for one relating to joint trials was a lengthy period factor and the joint trials, I suppose, comes in under “for any other reason”.  Then you see the word “shall” in that section and that was actually brought in by the 1988 legislation.  It used to be “may” before that.

GUMMOW J:   Have you looked at the New Zealand legislation, Extradition Act 1999?

MR GAME:   I have looked at it, your Honour, yes.  It does have ‑ ‑ ‑

GUMMOW J:   They have a special part in their Act relating to extradition to Australia.

MR GAME:   Yes, but it is differently framed but it has parallel concepts, I think it would be fair to say.

GUMMOW J:   Yes, it does. 

MR GAME:   I am not sure that I have time to go into that on this application, but a point I would make about it is that it seems to imply that neither system is churlish about having regard to the incidence of the process or the matters personal to the extraditees in those cases. There is no, shall I say, section 118 of the Constitution limitation in this exercise, that is to say, there is no “Full faith and credit” respect necessarily. I do not mean that facetiously but there are not those kinds of limitations. I should also mention subsection (4) is of moment ‑ ‑ ‑

GUMMOW J:   That is found in 19(5) as well, is it not?

MR GAME:   Yes, 19(4) is dragged across from section 19(5).

GUMMOW J:   Yes, we looked at that in Vasiljkovic fairly recently.

MR GAME:   I am not sure that I have read that case, your Honour, but the point about that is that it is quite curious because there is not going to be any evidence about the conduct unless the defendant actually puts on some evidence about it.  It has significance in this case because the applicants in this case were, shall I say, shut out from one part of their case in the Full Court which concerned the circumstances in which the complaints were made because it was thought that that traversed subsection (4).  We would say no, and if that is correct then really an awful lot of the inquiry that was being conducted would fall foul of subsection (4).

Your Honours, really at a glance, one can see that there are significant issues of construction that arise in these provisions ‑ ‑ ‑

GUMMOW J:   What are they?

MR GAME:   The significant issues of construction are whether or not ‑ ‑ ‑

GUMMOW J:   I can see there are different questions for the decision‑maker, given the rather broadly expressed terms, but that does not ‑ ‑ ‑

MR GAME:   Yes, your Honour, but the significant question of construction from our perspective is this.  When it came to the Full Court they, in effect, said that we had not shown that we could not get a fair trial in New Zealand.  We say that is not the test and it never has been the test and English cases such as Kakis which applied themselves to very similar language never suggested that that was the test.

So what we submit has happened is, in effect, that Bannister has been upheld but then turned into the case – by some process of reasoning of the Full Court we have been required to establish something more which is that we could not get a fair trial if we were ‑ ‑ ‑

GUMMOW J:   What about the magistrate’s decision?  How did that proceed on these matters?

MR GAME:   The reason I have put the magistrate to one side is because we say that it is an exercise de novo for Justice Madgwick, but to put it very briefly, the magistrate quite carefully identified some evidentiary problems and then ultimately, shall I say, said that that was a matter for the New Zealand courts to ‑ ‑ ‑

GUMMOW J:   The magistrate dealt, it seems to me anyway, very carefully with delay as a separate subject at paragraph 102 and following and in respect of one of the persons concerned there was no order for extradition.

MR GAME:   That is correct, your Honour.  Yes, your Honour, but can I say this, that neither the Full Court treated the exercise – and we say in this respect correctly – the Full Court treated the exercise as one about whether or not Justice Madgwick had decided this issue correctly.

GUMMOW J:   I realise that.  All I am putting to you is if you got here and we granted leave it might be open, reasonably, for us to come to the same view as the magistrate which would not help you.

MR GAME:   That is true.

GUMMOW J:   Which rather suggests there is no great question of statutory interpretation.

MR GAME:   As I say, the question that arises, if a question of importance arises in relation to these provisions, as I say, is whether or not we must go so far as to show that we could not get a fair trial in New Zealand.  That is the question that we would identify.  The question lying behind it, which we appreciate is a defensive one, is that we would say that Bannister was correctly decided but not properly applied in this case.

I appreciate that that in itself is not a special leave question unless one gets to Bannister, but the reason we say that Bannister was not properly applied is that once one gets to, shall I say, an incident of an unfair trial, we say that it does not really qualitatively make any difference whether or not it is blatant duplicity or the absence of a warning in circumstances where the warning is required because the trial would otherwise be unfair.  So that is how we would deal with the issue relating to Bannister.

May I take your Honours to Justice Madgwick’s judgment at paragraph 92.  In paragraph 92 his Honour, we submit, asked himself the correct question – the last three lines, and he is talking about delay.  Then what we have that follows are, shall I say, indicia of injustice or oppression that follow from that delay and may I focus on a couple of those.  The first is (i) in paragraph [95].

Now, the inability to specify time is no small matter because it means, if I could put it this way, say a person is innocent and you can only say that the offence occurred some time in three years then, in effect, there is a latent inability to establish one’s innocence, a latent inability to establish alibi.  The Full Court did not even deal with (i) at all.  Then we come to – these are the critical things in the finding of delay by, in effect, a primary judge – (ii) loss of witnesses.  Again, I would make a similar point that missing records and evidence are obviously matters of critical importance, again, not addressed at all by the Full Court.

Now, (iii) which appears in paragraph [99] was disposed of on the basis that it was caught by section 34(4) in the Full Court.  Again, this is a matter that is an indicia of the lengthy time period causing oppression or injustice because what one has here is many, many years after in fairly unsatisfactory circumstances with, for example, witnesses interviewed at the same time, witnesses knowing other witnesses’ allegations and so forth, that this problem arises in relation to the quality of the evidence given the circumstances of these complaints being made.  That was all put to one side by the Full Court on the basis that that was not something that could be led by reason of section 34(4) and again we would submit that is incorrect.

GLEESON CJ:   Nobody has yet got to the stage, I take it, of seeking in New Zealand permanent stay of proceedings or separate trials in these cases?

MR GAME:   In this case, not at all, your Honour, no.

GLEESON CJ:   They would be the kinds of matter that would be, almost as a matter of routine, thought about.

MR GAME:   No doubt, your Honour, yes.  There was one other matter that falls under the words “for any other reason” which is that the applicant, Moloney, it is proposed he stand trial with another person, McGrath, in relation ‑ ‑ ‑

GLEESON CJ:   McGrath has already been convicted.

MR GAME:   Yes, but there are some other allegations.  There is a very limited area of commonality and that was one other thing that Justice Madgwick identified and, again, that was really passed over by the Full Court.  Then we come to (iv) in paragraph [104] and it is worth just pausing on the first words of the Longman direction or the discussion in the joint judgment in Longman because the point was that the fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given, that is to say the giving of the warning tries to meet the disadvantage which has occurred.

Now, then I may go straight to paragraph [126] of Justice Madgwick’s judgment.  He makes the point that those factors that might favour a stay emphasise the detriments in terms of time.  He then considers factors that may weigh against it, namely the seriousness of the charges.  Then we come to the conclusion, which again, we submit, is quite conventional, at paragraph [142] in that you see, your Honours:

There is, nevertheless, very likely to be a high degree of unfairness to the applicants . . . Further, such trials would occur without the guarantee of a strong warning –

Now, when it comes to the Full Court, all the Full Court really does is consider the issue in the context of the absence of a Longman warning and we can see that if we now go to the Full Court’s reasons at paragraph [7].  Paragraph [7], there are the items listed and, as I say, ultimately, items 1, 2, 3 are not dealt with at all except 3 in the sense I have just said.

Now, at paragraphs [15] and [16] questions are framed as to what is meant by “unjust” and we would submit that [15] does not – those matters that are referred to do not really assist in the interpretation of “unjust”.  I should take your Honours back to paragraph [10] where we would submit erroneously the court said:

It was largely upon that basis –

which is the absence of the Longman warning –

that the primary judge concluded that it would be “unjust” –

We submit that for reasons I have already shown that does not accord with his reasons.

GLEESON CJ:   In paragraph [146] they referred to what the trial judge described as “presumptive” prejudice.

MR GAME:   Yes, but, your Honour, he did not decide the case on the basis of any presumptive prejudice.  He decided it on the basis of true prejudice in the sense that I have identified.

GLEESON CJ:   And in paragraph [161], looking at it from the point of view of the New Zealand courts and the New Zealand jurisprudence, they said:

The primary consideration on such applications had been whether, in light of the passage of time, the accused would receive a fair trial.

MR GAME:   Yes.

GLEESON CJ:   I understood that to mean in the light of the passage of time, having regard to the particular considerations applicable to these cases.

MR GAME:   Yes, I understand that this becomes in a sense too specific on a special leave application, but if one reads R v M what is being talked about in that case is not a warning at all but a comment or really nothing more than pointing ‑ ‑ ‑

GLEESON CJ:   In the light of their legislative scheme.

MR GAME:   No, I understand that, your Honour.  The yellow light is on and I will have to just finish up fairly quickly, but I wanted to take your Honours to a few other paragraphs.  If your Honours look at paragraph [16], you will see that, in effect, they have reframed the question in terms of whether or not we can show we do not get a fair trial by reason of the absence of a Longman warning, but that is not the way the issue was dealt with by Justice Madgwick and that has elevated the test.

The we see in paragraph [35] the idea that the issue of injustice is narrowly focused or more narrowly focused than the wide‑ranging consideration of the merits and there is a contrast with what appears in – and this comes back to the matter that your Honour Justice Gummow raised with me at the outset – there is a clear contrast with the approach taken by Justice Mahoney in Binge v Bennett which is set out in the judgment at paragraph [68], so we do have a divergence of approaches and the divergence of approaches is, we would submit, actually seen in the contrast between the approach taken in Bannister and this case.

Now, your Honours, then the court decides at paragraph [138] that Bannister is correctly decided and that that may take you to “the quality of the trial”.  Then at paragraph [205] they ask themselves:

The vital question is whether the trial judge was correct in holding that the respondents would not be assured of a fair trial in New Zealand.

That is actually not what the trial judge decided.  He decided the issue in the statutory language, and we see the same again at [222].  At [222] you see:

In our view, the primary judge gave too much weight to the need for a Longman warning to be given in assessing whether the respondents could receive a fair trial in New Zealand.

Paragraph [233] speaks about the trial being fair in the relevant sense and whether the respondents would receive a fair trial in New Zealand.  So we would submit that it is tolerably clear that what has happened is that the Full Court has over‑emphasised the Longman issue and then it has, shall I say, converted the question to whether or not the applicants had established that they could not get a fair trial, and that is not the correct question.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Game.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, it appears that the argument of my friend is twofold, one that relates to the absence of the Longman direction, if I could call it that, and secondly, the failure of the Full Court to deal with the other factors that are said to be relevant to delay.  In the respondent’s submission, both of those points are fundamentally flawed and for two reasons.  In my submission, in relation to one, it is based on a misconception of Bannister, and in relation to both of the points, they are based on a misconception of the interpretation of the Full Court’s judgment.

If I could deal at the outset with the question of the court not having dealt with things, as my friend has placed some emphasis on that, in my submission, the Full Court dealt with the issue as it had been argued, in effect.  If one reads Justice Madgwick’s judgment and, indeed, the passages in that judgment from the learned magistrate, it is obvious, in my submission, that the focus of the submissions is the comparison between what is said to be the Australian standards and the New Zealand system.

In my submission, it is apparent from Justice Madgwick’s judgment that absent that aspect it would not be enough, the factors that my friend has referred to, for example, lack of specificity or the possibility of contamination.  With respect, not surprising when one considers the comments in the decisions like Bannister – right at the end of the judgment in Bannister, I think it is about paragraphs 35 and 36 – where the court there observes, because they are lengthy delays in that case, that those sorts of factors ordinarily arise in these types of cases, that everyone appreciates those sorts of difficulties, but this Court, indeed – by that I mean in Australia – we are not in the best position to judge what, if any, prejudice arises from those factors.  Indeed, after the committal, they say, is probably the best position when one knows what the significance or otherwise of these features is.

Can I just highlight a couple of paragraphs.  In relation to Justice Madgwick’s judgment can I simply highlight paragraph [134] where his Honour there makes clear that:

If there is no injustice by Australian standards to the applicants inherent in the disposition of the charges under the New Zealand criminal justice system, the other aspects . . . would pale into insignificance –

In my submission, that is the whole tenor of the judgment and, indeed, in one sense, picked up by the Full Court at the outset of the judgment where they list in paragraph [6] what the factors were then go on to highlight clearly it was the Longman aspect which was of particular importance.  So, with respect to my friend, the argument now being put in relation to those other matters is to give them a status they did not have previously.

GLEESON CJ:   You could understand how this would arise as a matter of argument if you were in the position of your opponent.  The most obvious question that you would be asking yourself is “What is different between Australian law and New Zealand law?” and you would come up with an answer “Longman”, hence concentration on Longman, because if you did not have that, it might be very difficult to point to any material difference.

MS ABRAHAM:   Certainly.  The other passage that in my submission makes it clear that the Full Court did have regard to all the factors that are mentioned in paragraph [6] of the judgment is paragraph [234] of the Full Court’s judgment where the court comments:

Having considered all the factors taken into account by the primary judge –

those factors referring back to what is in paragraph [6] –

we conclude that, notwithstanding the long period that has elapsed since the offences were allegedly committed, it was not established before his Honour that it would be unjust –

Of course, the Full Court in their consideration of the relevant principles considered those cases that deal with the question of delay, Kakis and others, and they are dealt with at paragraphs [76] and [77].

GLEESON CJ:   Just remind us, which is the statutory provision that says, as it were, you do not get into matters of defence.

MS ABRAHAM:   Section 34 and subsection (4) is the one that prohibits evidence contradicting an allegation which makes, with respect, the types of factors relied upon here, in my submission, very difficult to establish because the learned judge or magistrate, whichever the position be, is not in a position to make a finding because they do not have the evidence.

GLEESON CJ:   I think this is a matter that we went into in relation to that Croatian case that we dealt with quite recently, but these extraditions under this particular system proceed on a basis of information, not on a basis of evidence, information as to what the charges are.

MS ABRAHAM:   Yes, and New Zealand has the least information.  It is a unique system to New Zealand.  It is simply the backing of the warrant and you must be surrendered but for those considerations in section 34 that have been referred to.  So unlike other countries where one is required to provide some, in effect, proof of what the charge is or what the allegations are or the like, for New Zealand you actually do not have to do that.

GLEESON CJ:   Presumably this subsection (4) would apply to prevent a person saying, “I have an alibi.  I wasn’t living in New Zealand during this time.  I’ve never been to New Zealand in my life.”

MS ABRAHAM:   Yes.

GLEESON CJ:   This section would prevent you saying that.

MS ABRAHAM:   Yes.  So, in my submission, there is no foundation to my friend’s submission that those other points, absent the Longman aspect, were not dealt with.  In the respondent’s submission, they were.

Can I deal with what is said to be the argument in relation to Bannister and Longman because my friend has submitted a moment ago that a special leave point arises because there is a divergence of approach between the court in Bannister and the court in this matter.  In my submission, that is just not so.  What my friend has done in his written submissions is to confuse the approach of the court in this case.  Bannister, in the respondent’s submission, contrary to the applicant’s submission, does not endorse an approach of analysing what warnings or directions are going to be given.

Bannister related to a particular concept and that is the concept of representative charges.  The issue of the direction does not become a live issue in that case because the directions allow for representative charges.  So there was nothing in the direction that was going to ameliorate the problem that Australia sees in representative charges because New Zealand allows it.  My friend then jumps from that concept to saying here Longman is the same situation.

GLEESON CJ:   Was there any evidence of New Zealand practice or was it just inference from what appears in New Zealand judgments like M?

MS ABRAHAM:   Yes, just inference from the ‑ ‑ ‑

GLEESON CJ:   I wondered, for example, whether there was information or evidence that in New Zealand they adopt a practice that is not uncommon here of charging the person in relation to the first time the conduct of that kind is alleged to have occurred and the last time conduct of that kind is alleged to have occurred, presumably on the assumption that that will be easiest for people to remember.

MS ABRAHAM:   No, there was no evidence of that because in this particular case the charges are not representative.  They are particular charges, so that problem did not arise.  The case was approached on the basis that the decision in M reflects the approach in New Zealand, namely that they recognise, as do our courts, the difficulties that are inherently involved in prosecutions of this nature.  They, like Australia, have systems in place, one of which clearly involves the potential stay of proceedings, and it appears that a stay is indeed more likely in New Zealand than it might be here.  If the matter does proceed to trial then, of course, there are all the discretions and the like in terms of exclusion of evidence.  If it does go to a jury then M talks about the necessity of the trial judge bringing home to the jury the difficulties that an accused faces in cases of this nature.  Of course, like here, if he is convicted, an appellate court would look to see whether that ensured a fair trial at the end of the day. 

In my submission, my friend’s written submission where he talks about that Longman is not going to be given, therefore, these accused ought not be surrendered, in my submission, is to miss the point.  Nobody knows what direction will be given at the end of the trial until one gets to the end of the trial, assuming one does have a trial, assuming the trial is not stayed, because you do not know what the evidence is, what the issues are, whether there is one trial, one victim, more than one victim.  We just do not know.

Regardless of any argument about what Longman does or does not mean, in my submission, it is obvious that the aim in relation to the giving of directions is to tailor it to the circumstances of the case to make it of most assistance, obviously, to the jury.  So, in my submission, my friend has turned around the reasoning process in this case to get to the situation where he says it now is a divergence of approach between this case and Bannister.  Quite to the contrary, it is not.

What the Full Court did was say, “This is what Bannister says” and Bannister, with respect, is an extreme case.  In light of the submissions put, the court asked the question whether they were satisfied that in

New Zealand the applicants’ trial would necessarily be unfair and concluded on the facts of this case, and what was obviously known about New Zealand law, no, they could not come to that conclusion and, in my submission, not surprising when one is given the nature of the topics discussed here, for example, Longman and joint trial, classic areas where the evidence is needed and typical trial factors.

So, in my submission, there is no divergence in approach between the two decisions.  Quite to the contrary, and, indeed, in the Crown’s submission the Full Court has approached it correctly and the decision ultimately is correct.  It is for the New Zealand court to determine how the matter at this stage will be dealt with.  As I said, there may or may not be a joint trial.  There may or may not be an application for a stay.  There may or may not be applications for particulars.  There may or may not be a whole variety of scenarios before one gets to the situation.

GLEESON CJ:   Are committals in New Zealand normally paper committals?

MS ABRAHAM:   No, they are traditional committals.  That is my understanding and, of course, as the Full Court recognised, it is at that stage or, indeed, after that stage when decisions are typically made in terms of joint – a trial with multiple victims, for example, is how it arose in the Full Federal Court.  Once the victims are seen and the issues are ventilated.  So, in my submission, these are typically matters that are trial matters and matters appropriate for the New Zealand court.  Those are my submissions.

GLEESON CJ:   Yes, Mr Game.

MR GAME:   Bannister does not stand for the very limited proposition that my friend put.  It stands for the proposition that you can have regard to the quality of the trial, including the directions given to the jury, and a specific decision is referred to, namely R v Accused, in that respect.  The decision in M was the only decision before by way of evidence, but the decision in M shows manifestly that what is given is not a warning about delay but a recitation of defence counsel’s submissions.

In respect of section 34(4), we would make the point that to the extent that, as it were, that cuts out an inquiry into events that may or may not have occurred, that forces one into a more abstract exercise about delay means injustice or oppression.  That is to say it is contraindicative in that respect.

Now, in respect of the passage that was referred to in Justice Madgwick’s judgment about paragraph [134] about oppression, that was all in the context of personal factors.  It has nothing at all to do with the

issue that we are talking about here.  It was a way of contrasting personal factors, but insofar as there was a reliance on the concluding paragraph [234] of the Full Court’s decision, that has to be read with [233] where the court had, in effect, misstated the issue and what Justice Madgwick had decided.  Those are our submissions in reply.

GUMMOW J:   Mr Game, what is the present procedural position?  The effect of the Full Court’s decision was to reinstate the magistrate and the magistrate’s decision would have the consequence that the surrender warrants would issue.

MR GAME:   Yes, your Honour.  There is a section that stays all that while there are outstanding proceedings, but if special leave is refused then that section…..to have any operation.

GLEESON CJ:   Thank you.  I think we discussed this the other day, but in any event there is no dispute between the parties about the necessity for a stay?

MR GAME:   No, your Honour.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 2.53 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.57 PM:

GLEESON CJ:   The decision of the Full Court of the Federal Court of Australia in this case turned on the application of the relevant statutory provisions to the particular facts and circumstances of the case.  It does not appear to us that the case gives rise to any substantial question of construction of those statutory provisions and we are not persuaded that the interests of justice require the grant of special leave to appeal to this Court.  The application is dismissed with costs.

We will adjourn.

AT 2.58 PM THE MATTER WAS CONCLUDED