Moloney v New Zealand

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FEDERAL COURT OF AUSTRALIA

Moloney v New Zealand [2006] FCA 438

EXTRADITION – overseas – New Zealand – eligibility – application for review – very old allegations of sexual offences against vulnerable children alleged against (members of a religious order) – whether age of charges in the circumstances made it ‘unjust or oppressive’ to surrender them – ‘review’ of magistrate’s decision – differences in Australian and New Zealand criminal law and procedure – principle in Bannister v New Zealand (1999) 86 FCR 417.

Evidence Act 1995 (Cth), s 101
Extradition Act 1988 (Cth), s 3, 27, 28 34(2), Part II
Service and Execution of Process Act 1992 (Cth), s 83
Crimes Act 1961 (NZ), s 140(1)(b), s 140(1)(c), s 142(1)(b)
Extradition Act 1999 (NZ), s 64(1)

International Covenant on Civil and Political Rights (16 December 1966), Art 10

Universal Declaration of Human Rights (10 December 1948), Art 14

Bannister v New Zealand (1999) 86 FCR 417, applied
Crampton v The Queen (2000) 206 CLR 161, considered
Doggett v The Queen (2001) 208 CLR 343
Kakis v Republic of Cyprus (1978) 2 All ER 634
Kenneally v New Zealand (1999) 91 FCR 292
Longman v R (1989) 168 CLR 79, considered
New Zealand v Venkataya (1995) 57 FCR 151, applied
Pfennig v R (1995) 182 CLR 461
R v Accused [1993] 1 NZLR 385
R v Ellis (2003) 58 NSWLR 700, followed
R v Holtz [2003] 1 NZLR 667
R v Littler (2000) 120 A Crim R 512
R v R (1996) 14 CRNZ 635
S v The Queen (1989) 168 CLR 266
W v R (2001) FCA 1648

ROGER MOLONEY and RAYMOND GARCHOW v NEW ZEALAND and MAGISTRATE HUGH CHRISTOPHER BRYANT DILLON

NSD 209 OF 2005

MADGWICK J

21 APRIL 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 209 OF 2005

BETWEEN:

ROGER MOLONEY
FIRST APPLICANT

RAYMOND GARCHOW
SECOND APPLICANT

AND:

NEW ZEALAND
FIRST RESPONDENT

MAGISTRATE HUGH CHRISTOPHER BRYANT DILLON
SECOND RESPONDENT

JUDGE:

JUSTICE MADGWICK

DATE OF ORDER:

21 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The decision of his Honour Magistrate Dillon be quashed.

3.His Honour (or in his absence any other available Magistrate) is directed to order the release of the applicants pursuant to s 35(2) of the Extradition Act 1988 (Cth).


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 209 OF 2005

BETWEEN:

ROGER MOLONEY
FIRST APPLICANT

RAYMOND GARCHOW
SECOND APPLICANT

AND:

NEW ZEALAND
FIRST RESPONDENT

MAGISTRATE HUGH CHRISTOPHER BRYANT DILLON
SECOND RESPONDENT

JUDGE:

JUSTICE MADGWICK

DATE:

21 APRIL 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an application pursuant to s 34 of the Extradition Act 1988 (Cth) (‘the Act’) for review of the judgment of a Magistrate of the New South Wales Local Court, holding that the applicants are eligible for surrender to New Zealand.

  2. The applicants, to whom I will refer as Brother Moloney and Father Garchow, are members of the…

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Details
Case
[2006] FCA 438
Decision Date

CaseChat Overview and Summary

In the case of Moloney v New Zealand, the applicants sought to prevent their extradition to New Zealand to face historical child sexual abuse charges. The applicants argued that the long delay in bringing charges and the subsequent loss of evidence and witnesses would make a fair trial impossible. The court had to determine whether the surrender of the applicants to New Zealand would be unjust or oppressive under section 34(2) of the Extradition Act 1988 (Cth). The court also considered whether the applicants had to provide evidence to show that the prosecution could not succeed. The court reviewed the relevant authorities and found that while the applicants did not need to provide evidence of guilt initially, if they could demonstrate that there was no evidence to support the charges or other reasons for a failed prosecution, the court could find the accusation was not made in the interests of justice. The court concluded that the extreme delay, loss of evidence, and unavailability of witnesses created a significant risk of prejudice to the applicants, making a fair trial impossible. Thus, the surrender of the applicants would be unjust and oppressive. The court quashed the magistrate's decision to order extradition and directed the magistrate to release the applicants.

Orders

Orders of the court

1. The application be dismissed.

2. The decision of his Honour Magistrate Dillon be quashed.

3. His Honour (or in his absence any other available Magistrate) is directed to order the release of the applicants pursuant to s 35(2) of the Extradition Act 1988 (Cth).

Background

Background to the litigation

The principal factors that might add to the applicants’ difficulties are:(i)The charges and alleged facts lack specificity as to time. This is not surprising but it necessarily adds to the difficulty for each applicant in preparing to defend himself. Periods are given for the alleged offences ranging, in Brother Moloney’s case, from a one-month period in 1973, over 29 years before he was informed of the charge in 2003, to a period of over two and a half years, expiring nearly 26 years before he was so informed. In Father Garchow’s case, one period is almost two years long, expiring 25 years before he was informed of the allegation, and the other is over a year long, expiring nearly 23 years before he was informed of it in 2003.(ii)Loss of potential witnesses and records Known potential witnesses have died or are otherwise unavailable and records likely to have been able to cast light on the circumstances of individual complainants no longer exist. Notably these include the attending doctor, some of the school’s staff, medical records and records such as psychological reports and the like apparently kept on most of the boys. Among other missing documents for the period before 1977, that is in the years when most of the offences were alleged, are what were known as ‘Mutations Books’ – these recorded such things as visits by official visitors, school inspectors, social workers, nurses, doctors and psychologists and parents and guardians of boys at the school. The unavailable witnesses and lost records may well have assisted one or both of the applicants. Each applicant has, because of the long delay, certainly lost the chance to know whether there was, and to use, anything that might be useful in the records, and to inquire of the lost witnesses as to matters that might either confirm or tend to confound the particular allegations against him. Not all of the school’s records for the crucial periods have been lost. There are some personal files on each of the applicants, some newsletters and some photographs of the school buildings and of pupils and staff. Further, the school was relatively small in the numbers of its student body. Nevertheless there is a strong likelihood that relevant material that might well have assisted the applicants is gone. In R v Littler (2000) 120 A Crim R 512 the NSW Court of Criminal Appeal granted a permanent stay of proceedings in a case of even longer delay than the present. Adams J (with whom Hodgson JA and Greg James J agreed) said (at 521-2):‘In the circumstances here, it must, I think, be accepted that there is at the very least a reasonable possibility that witnesses other than those which I have identified and who were at the Home, whether as pupils or staff, would be capable of giving relevant evidence and it is reasonably possible that such evidence might, to a greater or lesser extent, assist the applicant. In evaluating this question it is important that there be no presumption that the complainants are either truthful or reliable, although it is their evidence which presents the starting point for a consideration of the issue of prejudice. The existence of relevant evidence from other sources is made more likely by the circumstance that the allegations cover a lengthy period of time in an institution populated, temporarily or permanently, by a significant group of persons with whom the complainants communicated on a frequent basis and whose responsibilities in part included supervision of their welfare. At the same time, whether, in fact, any significant relevant evidence can be given and, further, whether that evidence would assist the defence, is necessarily speculative. There is also something in the argument that the absence in the Crown case of any admissible supporting material, in circumstances where, if the complainants' accounts be truthful, one would expect it to be present, significantly weakens the prosecution case. If the trial were to proceed, this would need to be brought to the jury's attention in emphatic terms and the tendency to explain the problem away by adverting to the lapse of time warned against. So far as the complainants' accounts are concerned, however, the alleged offences occurred (not surprisingly) in circumstances where no eye witnesses were present. … however, a significant number of potential witnesses must have existed. The delay in this case, however, is so extreme that I have difficulty, for myself, in constructing a direction which would sufficiently make clear to the jury the grave difficulties imposed by the circumstances on both the prosecution and the defence cases. Both classes of difficulty, of course, must be regarded as adverse to conviction.The second significant matter of prejudice, which I have already referred to in passing, concerns the effect of delay on the applicant's ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise, not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants. To make a rather obvious point, if the applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged). If, on the other hand, he did not commit the alleged offences, then his knowledge of and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague.’Somewhat similar considerations, so far as they are material, apply in the present cases.(iii)The manner of emergence of the complaints

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

His Honour summarised the authorities concerning s 34(2) and like provisions (at 165-6) as follows:(i)On an application for the surrender of a person to New Zealand, it is not necessary, at least in the first instance, for the applicant to adduce evidence of the guilt of the person apprehended: Narain v DPP, at 419. However, if the person apprehended can show that there is no evidence to support the charge, or that there are other reasons why the prosecution cannot succeed, the court is likely to conclude that the accusation was not made in the interests of justice, within the meaning of s.34(2)(b) and that the surrender of the person would be unjust or oppressive: Bates v McDonald, at 102; Lewis v Wilson; Binge v Bennett, at 585; Butler v Morahan (1988) 94 FLR 372 (SCt NSW/Carruthers J.)(ii)The words “unjust” and “oppressive”, as used in s.34(2) of the 1988 Act, are directed at two concepts that address rather different issues, although they overlap to some extent. As stated by Olsson J. in Perry v Lean, at 537:“The former primarily (but not exclusively) concerns itself with the risk of prejudice to the accused in relation to the conduct of a proposed trial. The latter is more related to hardship to an accused resulting from changes in his or her circumstances that have occurred during the period to be taken into consideration. However there is room for overlapping and between them the two concepts cover all cases where to return the accused would, in the whole of the circumstances, simply not be fair.”Although a dissenting judgment, his Honour's observations were not at odds with the legal principles adopted by the majority: see Edmonds v Andrews (1987) 85 FLR 419 (FCA/Von Doussa J.), at 421. See also Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (HL), at 782-783.(iii)The determination as to whether an order for surrender would be unjust or oppressive is a question of fact: Perry v Lean, at 537-538, applying R. v Governor of Pentonville Prison; ex parte Narang [1978] AC 247 (HL), at 272-273, per Viscount Dilhorne; Clear v Holyoak [1993] 1 Qd R 376 (Q SCt/FC), at 378 (determination of fact, or at least of mixed law and fact).(iv)In determining whether it would be “oppressive” to surrender the apprehended person to New Zealand, the court can take into account the financial hardship, domestic upheaval and emotional distress the person would experience if surrendered: Hicks v Martin (1990) 27 FCR 416 (FCA/FC), at 418, per Morling, French and Lee JJ. (for subsequent proceedings see Ex parte Hicks (1991) 65 ALJR 398 (HC/Toohey J.). The apprehended person is entitled to rely on hardship, even though the hardship is not necessarily occasioned by the delay in bringing him or her to trial: Hicks v Martin, at 419, not following Bryan v Preston (1982) 64 FLR 46, at 53, on this point.(v)The question under s.34(2) is not whether it was unjust or oppressive for the authorities to charge the accused, but whether, on the particular facts of the case, it would be unjust to remove him or her to that jurisdiction: Perry v Lean, at 519, per Jacobs J. Each set of circumstances must be assessed to determine whether injustice or oppression is present: Perry v Lean, at 537, per Olsson J.(vi)In determining whether there is injustice or oppression to an accused, the gravity of the offence charged is a relevant (and, I would add, very important) consideration: Perry v Lean, at 537; White v Cassidy (1979) 40 FLR 249 (SCt Tas/Green CJ). The “offence” in this sense refers to the facts and circumstances of the alleged conduct, rather than the theoretical nature of the offence: Edmonds v Andrews, at 421.(vii)The extent of any delay in instituting a prosecution, the cause of the delay and the consequences flowing from it are relevant and perhaps decisive: Perry v Lean, at 537. However, if the delay is not due to the conduct of the alleged offender, the consequences of the delay are more significant than its cause: Edmonds v Andrews, at 421-422. Mere delay without evidence that it has caused injustice or oppression, is not enough: White v Cassidy, at 253.’Criticism of the Magistrate’s decision

Ratio Decidendi

Legal Principle Established

The 1901 Act was repealed by Act No. 166 of 1992, the Service and Execution of Process Act 1992 (which came into force on 10 April 1993). The discretion just referred to was removed. Upon production of the warrant, or a copy of it, a magistrate is now bound under s 83 to order extradition unless he or she is satisfied that the warrant is invalid:‘Procedure after apprehension83.(1) As soon as practicable after being apprehended, the person is to be taken before a magistrate of the State in which the person was apprehended.(2)The warrant or a copy of the warrant must be produced to the magistrate if it is available.…(8)Subject to subsections (10) and (14) and section 84, if the warrant or a copy of the warrant is produced, the magistrate must order:(a)that the person be remanded on bail on condition that the person appear at such time and place in the place of issue of the warrant as the magistrate specifies; or(b)that the person be taken, in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant.(9) The order may be subject to other specified conditions.(10) The magistrate must order that the person be released if the magistrate is satisfied that the warrant is invalid.(11) The magistrate may suspend an order made under paragraph (8) (b) for a specified period.’Judicial consideration of s 34(2) In New Zealand v Venkataya (1995) 57 FCR 151 at 162-3, Sackville J provided some further background to the terms of s 34(2):‘The language used in s.34(2) has its Australian antecedents in the provisions of the Service and Execution of Process Act 1901 (“the 1901 Act”). Section 18(6) of the 1901 Act governed the extradition of persons from one Australian State or Territory to another until the 1901 Act was repealed by the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992, s.3. …The three grounds specified in s.18(6) existed in the 1901 Act in its original form: Binge v Bennett (1988) 13 NSWLR 578 (NSW CA), at 584, per Kirby P. Unlike s.34(2), s.18(6) of the 1901 Act did not refer specifically to the lapse of time since the alleged offence was committed. However, the court's powers under that sub-section arose if, “for any reason”, it would be unjust or oppressive to return the person to another State or Territory.The immediate predecessor to s.34(2) of the Act was s.27 of the Extradition (Commonwealth Countries) Act 1966 (“the 1966 Act”), Part III of which dealt with extradition to and from New Zealand. The scheme of Part III of the 1966 Act was similar to that of Part III of the 1988 Act and was summarised by Wilcox and Jackson JJ. in Narain v Director of Public Prosecutions (1987) 15 FCR 411 (FCA/FC), at 417 (Narain v Director of Public Prosecutions was the subject of High Court proceedings, but on other issues: see Narain v Director of Public Prosecutions (1987) 61 ALJR 317; 71 ALR 248). Section 27 of the 1966 Act read as follows:“If a Magistrate before whom a person is brought under this Part is satisfied-(a)by reason of -(i)the trivial nature of the offence that the person is alleged to have committed or has committed;(ii)the accusation against the person not having been made in good faith or in the interests of justice; or(iii)the passage of time since the offence is alleged to have been committed or was committed; or(b)for any other reason.that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, or to surrender the person before the expiration of a particular period, the Magistrate may [order the person released or make other orders the magistrate thinks just].”It will be seen that s.27(a)(iii) of the 1966 Act referred to “the passage of time” since the alleged offence, rather than the fact that “a lengthy period has elapsed” since the alleged offence, as does s.34(2) of the 1988 Act. However, I do not think that anything turns on this slight difference in language. The authorities construing s.27 of the 1966 Act, as well as those dealing with s.34(2) of the 1988 Act, must therefore be considered in construing the current legislation. The authorities construing s.18(6) of the 1901 Act are also helpful, despite the more significant differences in language.It should be noted that, since 10 April 1993, extradition within Australia is governed by the regime created by Part 5 of the Service and Execution of Process Act 1992. Under this regime, although there is power to consider the validity of a warrant and to grant bail, the magistrate has no statutory discretion to refuse to return the person apprehended to the place where the warrant was issued: ss.83-86. It is of course open to Parliament to introduce a similar regime for the extradition of accused persons from Australia to New Zealand, but that step has not been taken.’