Narain, A v Director of Public Prosecutions

Re: AMRIT LAL NARAIN
And: DIRECTOR OF PUBLIC PROSECUTIONS; BRUCE ADAM CURRIE; DAVID KITCHENER HYDE
No. NSW G367 of 1986
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Extradition - to New Zealand - relevance of strength of prosection case - lack of definition of accusation - admissibility of evidence of prosectuion case - onus of proof - absence of evidence from prosecution - effect of amendment of statute - relevance of authorities on interstate extradition within Australia - what can be "any other reason" for refusal of extradition.

Extradition (Commonwealth Countries) Act, 1966 ss.24, 25, 26, 27, 28

Extradition (Commonwealth Countries) Amendment Act 1985

Service and Execution of process Act 1901 s.18(6)

HEARING

BRISBANE

#DATE 17:9:1986

ORDER

As to the Warrant for Surrender under sub-section 26(5) of the Extradition (Commonwealth Countries) Act 1966 issued by the third respondent in respect of the applicant as a person accused of the offence of unlawfully detaining Nell Grace Armitt in a garage pit at 182 West Street, without her consent, with intent to cause her to be confined against the law of New Zealand - it is ordered that the said warrant and the order for surrender contained therein be set aside.

The application be otherwise dismissed.

No order as to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under s.28 of the Extradition (Commonwealth Countries) Act 1966 for a review of an order of a magistrate (the third respondent, Mr. Hyde) that the applicant be surrendered to New Zealand. The applicant was arrested on warrants issued under the provisions of that Act alleging the commission of offences in New Zealand, and after a number of appearances, two orders for surrender were made by the third respondent on 28 August 1986 under s.26(5)(a) of the Act. The case appears to be the first in which it is necessary to consider the effect of recent substantial amendments to the legislation.

The inception of the proceedings which led to the third respondent's order occurred on 9 December 1985, when his Honour Judge Carruthers, at Masterton, New Zealand, executed two warrants directing the arrest of the applicant on the basis of informations that the applicant, between 1 November 1983 and 8 June 1985:

(i) Did assault a child, namely Amrit Jason Sich, aged about two years.

(ii) Did unlawfully detain Nell Grace Armitt in a garage pit at 182 West Street, without her consent, with intent to cause her to be confined.

Although, in a practical sense, it may be that the applicant will gain no advantage unless he succeeds as to both warrants, each has to be given full consideration.
These proceedings are governed by the Act as amended by the Statute Law (Miscellaneous Provisions) Act (No. 2) 1985, which came into force on 16 December 1985, because no step was taken in this country until after that date. But so far as relevant to this case, the provisions of the Act are to be found in the 1979 consolidation and the Extradition (Commonwealth Countries) Amendment Act 1985, No. 17 of 1985. This Court's jurisdiction is derived from s.28(1) which permits an application by a person apprehended under s.26(5) of the Act for a review of the magistrate's order. Section 28(3) provides:

"The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connection with the review."

However, except in some very minor respects, the matter was conducted here on the basis of the evidence given before the magistrate.

Under s.28(5), the Court is empowered upon the review to "confirm or vary the order, or quash the order and substitute a new order in its stead".
Provisions relating to extradition to and from New Zealand are wholly contained in Part III of the Act. Counsel for the respondents emphasised the limited function of the Magistrates Court (and this Court on review) under that Part, and the similarity of that Part to the provisions relating to interstate extradition in the Service and Execution of Process Act 1901. Section 24 of the Extradition (Commonwealth Countries) Act permits an Australian magistrate to make an endorsement on a New Zealand warrant for the apprehension of a person accused or convicted of an offence against New Zealand law where the person is, or is suspected of being, in or on his way to Australia. The effect of the endorsement is to authorise the execution of the warrant here. Such an endorsement was made by Mr. K. Henderson on 4 February 1986, and the warrant was apparently executed on that date.
It appears, however, that the applicant was first arrested on 25 January 1986, under a warrant issued under s.25 of the Act; nothing appears to turn on that circumstance for, in either event, s.26(5) gives power to the magistrate before whom the person apprehended is brought to -

"... subject to the next succeeding section, by warrant in accordance with Form 9 in Schedule 2, order the person to be surrendered to New Zealand and, for that purpose, to be delivered into the custody of the person bringing the warrant referred to in section 24 of this Act or of any other person to whom that warrant was directed."

It was pursuant to that provision that the orders in question were made, namely that the applicant be surrendered to New Zealand, and for that purpose be delivered into the custody of Det. Sgt. Bruce Adam Currie, to whom reference is made below.
The "next succeeding section" is, of course, s.27 which, in its present form, reads as follows:

"27. 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 -

(c) order that the person be released;

(d) order that the person be surrendered after the expiration of a period specified in the order and order the release of the person on bail until the expiration of that period; or

(e) make such other order as the Magistrate thinks just."

Prior to the passage of the Amendment Act of 1985 (No. 17 of 1985), the terms of that section were different in a way which was, in the present case, argued to be important. After the words "was committed", in sub-par.(a)(iii), the section ran in part -

"... and having regard to the circumstances under which the offence is alleged to have been committed or was committed, it would be unjust, oppressive or too severe a punishment to surrender the person ..."

There followed language different in no important respect from the present form of the section.

Counsel for the applicant pointed out that the change appeared to be designed to give to the magistrate exercising jurisdiction under s.27 a wider discretion than was previously accorded him.
In outline, the evidence before the magistrate consisted in the giving of a very brief indication of the nature of the prosecution's case by Det. Sgt. Currie and the calling of a number of witnesses on behalf of the applicant, who denied that any offences were committed, and attacked the character of persons Currie said would be called for the prosecution. Counsel for the applicant relied, before me, upon sub-pars.(a)(ii) and (a)(iii) of s.27, and also upon par.(b). Counsel submitted that if the onus under s.27 was initially on the applicant, it was one which could shift to the respondent. Counsel argued that the applicant had called sufficient evidence before the magistrate to compel a conclusion in favour of the applicant, in the absence of anything substantial in response to it. He said there was no evidence that any offence had been committed and plenty of evidence that none had been, and that having regard to the whole of the circumstances, including delay, it should be held that it was unjust, oppressive or too severe a punishment to surrender the applicant to New Zealand.
In its present form, s.27 of the Extradition (Commonwealth Countries) Act 1966 is similar to, but by no means identical with, the corresponding provision of the Service and Execution of Process Act 1901, namely s.18(6) which commences:

"If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that -

(a) the charge is of a trivial nature;

(b) the application for the return of the person has not been made in good faith in the interests of justice; or

(c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period,

the Magistrate or Justice of the Peace may ..."

For present purposes, the most important differences between the two provisions are that the earlier statute makes no reference to the passage of time, that it uses the expression "in good faith in the interests of justice" rather than making good faith and the interests of justice alternatives, as does the later statute, and that it attaches the requirement of injustice or oppression only to the last, general, ground "for any reason"; the 1966 Act attaches it to each of the four sets of circumstances set out in sub-pars.(a) and (b) and adds "too severe a punishment". All that having been said, the two sets of provisions are generally similar, and I would think it improbable that the legislature intended their operations to be entirely different.

Counsel urged upon me the view that important clues to the intended operation of the new provision were to be found in the second reading speech made by the Attorney-General on introducing the 1985 Amendment Bill. Although I have studied that speech, I have not found anything in it which throws a clear light upon the present problem. A better guide to its genesis, perhaps, is the judgment of Yeldham J. in Daemar v. Parker (1975) 2 NSWLR 744, especially at p 750. His Honour there had to review a similar order and held that the charge was probably misconceived. He was not prepared, however, to conclude that the police acted otherwise than in good faith, or in the interests of justice. He said:

"In those circumstances, I am not permitted by the terms of s.27 to give effect to my view that the present charge would almost certainly fail by discharging the plaintiff. He has not shown any of the matters in s.27(a), (b) or (c), and one or more of these must be proved as a condition precedent to his release. In my opinion, this is an unsatisfactory situation and in some respects might be regarded as being unfair to the plaintiff, and perhaps calling for legislative amendment to bring s.27 into line with s.18(6) of the Service and Execution of Process Act."

Although Yeldham J. implied that he might, perhaps, have been able to give effect to his view about the charge had the proceedings been under the Service and Execution of Process Act, he held at p.747 that under either Act "it must be shown that the charge is wholly misconceived or cannot possibly be right, whether as a matter of fact or of law ..." However, as to factually based attacks on charges, the authorities under the Service and Execution of Process Act do not necessarily go quite as far as that.
The most recent appellate decision under the Service and Execution of Process Act in which the question of a weak factual prosecution case was extensively discussed appears to be In re Alstergren and Nosworthy (1947) VLR 23. There, two members of the Court (Fullagar J. dissenting) refused extradition to Tasmania on the ground that it appeared the charge would fail, without applying the "wholly misconceived or cannot possibly be right" test. Lowe J. referred, as sufficient to justify refusal of extradition, to evidence which -

"... either demonstrates that the defendant has a complete defence to the charge or that the whole evidence which can be adduced by the prosecutor is before the justice and is such that no magistrate could on it properly find a case against the defendant fit to be sent for trial." (pp.39,30)

The other member of the majority was Martin J. who referred, with approval, to the test set out by Madden C.J. in O'Donnell v. Heslop 1910 VLR 162 at 170:

"Or it might be that the facts on which the prosecution is launched may be shown to be so flimsy that according to the principles on which preliminary trials are conducted the magistrate would come to the conclusion that no jury would convict the accused."

The harsher test of "wholly misconceived or cannot possibly be right", curiously enough, comes from the same judgment of Madden C.J. at the same place, but reading the passages as a whole, it is clear that Madden C.J. intended the test quoted by Martin J. to be an alternative, and did not suggest that the harsher test excluded the other.

In two decisions in 1985, the New South Wales Court of Appeal has regarded the harsher test, or some verbal equivalent, as applicable for the purposes of the New Zealand extradition provisions. The earlier of those cases was Willoughby v. Eland (1985) 59 ALR 147 in which the Court said, in effect, that extradition could be refused on the ground that the prosecution case was weak only where -

"... the evidence was so complete and of such a character that ... it was demonstrably clear that the proceedings could have no foundation at all."

Similar language was used in the second case, Bates v. McDonald (1985) 2 NSWLR 89, at pp 95D, 100G and 104A.

It seems plain that the test used by the Victorian Full Court in In re Alstergren and Nosworthy (above), which assimilates the question to that which arises in a committal hearing, differs sharply from those just mentioned. Before stating my own views as to whether the recent amendment should cause one to follow the views of the Victorian Full Court on the Service and Execution of Process Act provisions, it is desirable to deal with some other legal questions which were debated.
As to the onus of proof, in my view, it is and remains on the applicant. There is ample authority for that proposition, for example, in Willoughby's case, 59 ALR at p.150, in Bates' case, (1985) 2 NSWLR at p 93 and in Fulcher v. Hilt (1985) 79 FLR 353 at p 361. McHugh J.A. said in Bates' case, referring to the burden on persons such as the applicant:

"In cases where no evidence has yet been given against him, or where the whole of the evidence against him has not been tendered, his task of establishing that the accusation was not brought in the interests of justice will be almost impossible." (p.102F)

I return to this point below.

Next, it was not conceded here, on behalf of the applicant, that the question of "good faith" in sub-par.(a)(ii) of s.27 is to be tested by reference to the state of mind of the police officer bringing the charge; it was said that one must look at the good faith of the real accusers, who are clearly identified in the evidence.
That is contrary to the view of Yeldham J. in Daemar v. Parker (above) at p 749, and the contrary was also conceded in Willoughby's case (above) - see p 150. I prefer, however, not to express a conclusion on that point, as it seems to me unnecessary for the disposition of this case to do so.
Lastly, it was suggested that to indicate the nature of its case, the prosecution would have to call the witnesses, as on a committal. That appears, on the authorities, not to be so. In Willoughby's case (above) the detective who gave evidence was allowed to explain what information he had available to him, although much of it was "no doubt hearsay"; see pp.149, 152. In Bates' case, where the same point was agitated, Kirby P. held that the depositions might be examined (see (1985) 2 NSWLR at p.95), and in Fulcher's case, Wood J. held (79 FLR at p.357) that even material in the depositions not admissible in the prosecution could be taken into account on the question of good faith.
The matter just referred to assumed some importance before the magistrate, where it was submitted for the prosecution, in effect, that no information about the evidence available should be placed before the Court. That was rightly rejected by the magistrate, who permitted questioning of Det. Sgt. Currie as to the witnesses available and what they might say; the answers to such questions were, however, vague and unsatisfactory. It was suggested by counsel for the respondents before me, that if there was any weakness in that respect, it was capable of being repaired by an assurance which was given by counsel for the prosecution before the magistrate that "many of the facts that have been read before Your Worship are in fact disputed". Although there is certainly authority in support of the view that statements of that sort should be taken into account (for example O'Donnell v. Heslop (1910) VLR at p 170), I am reluctant to do so; it would seem to be rather odd that in a doubtful case extradition could be achieved by a mere statement by the prosecution from the bar table, when presumably a corresponding privilege would not be accorded counsel for the accused.
It may well be that in many cases, for example where there has been a committal in New Zealand, there is no occasion for any extensive examination of the prosecution evidence and the "wholly misconceived" test should be applied. I do not regard that, however, as necessarily an appropriate test in all instances in which the Court has to determine the statutory issue: is it for any reason unjust or oppressive to surrender the fugitive? One reason which may assist the fugitive towards a favourable answer, or in itself suffice, is that the case seems clearly to be a flimsy one, as mentioned in the two Victorian Full Court cases referred to above. On the basis of those decisions, I have here adopted the course of taking into account my impression of the apparent strength of the respective cases on each charge, so far as that can be judged from the one-sided material presented.
It was argued on behalf of the applicant that the Court should be convinced by the evidence produced on his behalf that the charges were baseless. It was pointed out that a number of witnesses gave evidence that the offences alleged were never committed, but no one gave evidence to the contrary, that it was not even put to witnesses for the applicant that their evidence denying the allegations against the applicant was false, and that there was evidence providing a motive for the making of false allegations.

It appeared from the evidence that the applicant was the leader of a group of people living a communal life in what was described by some at the hearing before the magistrate as an ashram. Counsel for the applicant pointed out that the applicant was not, by any means, a fugitive in the ordinary sense; when he left New Zealand at the end of 1984 no charges were pending against him.
The record contains very little information about the prosecution's case on either charge. As to the assault charge, the allegation was one of an "ongoing" offence committed between 1 November 1983 and 8 June 1985. Counsel for the applicant before the magistrate asked for the names of witnesses. Objection was taken, but overruled. Det. Sgt. Currie said that he could not give a complete list of witnesses; he mentioned only the "complainant", Rosanne Sich, and one Bruce Dixon. He undertook to try to procure the names of other witnesses, but seems not to have done so.
On the other charge, the evidence for the respondents is rather less satisfactory. The allegation is, again, that the offence was committed between 1 November 1983 and 8 June 1985. However, Det. Sgt. Currie gave evidence that a local building inspector, for the Greytown Borough Council, said the pit in question had been constructed in September 1982 and filled in about March 1984. If that was correct, of course, there was no possibility of anyone being confined in the pit in 1985. As with the other matter, the applicant sought to ascertain more details of the allegation, but had little success; Currie said that the case was one of a number of events of detention over the period alleged, that is from 1 November 1983 to 8 June 1985. Not surprisingly, counsel for the applicant below pressed Currie on the point and was told that "we were unable to establish when these offences took place. We know when the complainant arrived at that address, and we know when she left".
Other evidence about the pit was given by witnesses on behalf of the applicant. One said he helped dig the pit and helped fill it in and that the gap in time between the two events was about three weeks, at the end of 1983. Mr. N.E. Engel, an electrical contractor, saw the pit being constructed in November 1983 and said that he returned about 26 December 1983 when the pit was filled in. It should be added that the applicant put before the magistrate that the building inspector mentioned above said that the pit had been filled in in the month of December 1983 (in accordance with the evidence just mentioned), but even assuming that that should be ignored, there seems to be no prospect on the information presented to the magistrate of establishing that the pit was in existence past March 1984; that is, for at least a year of the period charged the pit was non-existent. The matter was extensively discussed in the evidence below, and there was no suggestion on the part of the respondent that evidence was available of the existence of the pit after March 1984.
It has to be kept in mind that the complaint about alleged detention is said to have been made in August 1985 - i.e. about two months after the end of the period charged.
It must, I think, be accepted that the legislature cannot have intended anything in the nature of a full committal hearing. On the other hand, the operation of s.27 might be reduced to a solemn farce if whatever evidence the accused produced could be countered by the mere assertion that evidence to the contrary was available. Particularly is that so where, as here, no attempt was made on behalf of the prosecution to narrow the issues by explaining, for example, whether the alleged detention was said to have been for five minutes or five days, or when it occurred. Further, if, as some of the dicta in cases referred to above suggest, the prosecution can resist any attack on its case in such proceedings by pointing to the sheer lack of information on what that case is, the process is reduced to mere formalism, which cannot have been intended by the legislature.
It does not appear to be necessary for the prosecution to call direct evidence as to the nature of its case, and it may do so by methods such as are mentioned above; that removes the objection that it is entirely too inconvenient for the prosecution even to outline the evidence on which the accusation is based.
Here counsel for the prosecution, before the magistrate, by no means confined himself to mere pascivity. He engaged in a fairly wide-ranging cross-examination of the witnesses called by the applicant to deny the commission of the offences alleged, and from that cross-examination it became clear that he had been instructed in considerable detail as to the background of the matter, including aspects of it which appeared, with respect, to be very marginal. Yet, as counsel for the applicant pointed out, nothing specific was put, in many pages of transcript, about the alleged offences themselves.
Counsel for the applicant did not rely upon the suggestion that the offences charged were trivial; he could hardly do so, because the prosecution provided no information upon which a judgment could be made as to whether they were trivial or not. The tone of the prosecution's case was set early by a remark made by its counsel to the effect that he imagined that the police had put together a brief of evidence. While there was no obligation on the prosecution to inform its counsel of the nature of the prosecution case (which, from the glimpses of it given, did not appear to be complex), its having failed to do so cannot redound to its advantage. I do not say that in every case, or most cases, the prosecution must disclose its case in detail, for example, by providing statements, but merely that, where the facts seem to be simple and are disclosed only in the vaguest way, that may disadvantage the prosecution when the Court comes to consider what order should be made under s.27 or s.28; see Morgan v. Babcock and Wilcox (1929) 43 CLR 163 at p 178.
The consideration just mentioned applies with particular force to the charge of unlawful detention. On the information placed before the magistrate, there was no rational basis for thinking that the charge could be made out in respect of most of the period alleged. Before me, nothing further was advanced to add substance to the allegation. Yet it would be competent to the prosecution, if the applicant were extradited on that charge, to allege (for example) that there was in truth a pit in 1985 in which detention or detentions then occurred - a suggestion never pressed in these proceedings.
In my view it would be unjust and oppressive to extradite the applicant on the detention charge for the following reasons:

(i) So far as one can determine from the facts available, if any offence occurred it was completed before March 1984, yet no complaint was made until August 1985 - and then, curiously enough, to the mass media.

(ii) The prosecution persisted in charging a detention during a much longer period than, on the information available, could possibly be justified.

(iii) There was direct evidence from witnesses in a position to

know the facts that no detention took place, and nothing to the contrary of that was put to them.

(iv) The prosecution failed, both before the magistrate and before me, to give any reasonable account, however brief, of the nature of its case, although it pursued peripheral matters before the magistrate quite freely.

(v) The person described by Det. Sgt. Currie as the complainant was, on the unchallenged evidence, a person of very limited intellect.

It should be added that this judgment does not, by any means, intend to reflect upon counsels' conduct of the matter; it seemed clear that both the prosecution counsel who appeared before the magistrate and the different counsel who appeared before me had instructions to conduct the case rather similarly. The purpose of those instructions, I am bold enough to suspect, was to test the limits of the doctrine that it is virtually impossible for an applicant to succeed on the basis that the case against him has no substance, where the prosecution resolutely refrains from explaining what that case is. It is noteworthy that Det. Sgt Currie was said to have spoken to only one prosecution witness and seemed, plainly enough, to have no knowledge of the details of what any other witness was to say.
Travel to New Zealand is not a lengthy or arduous matter. See the Daemar case in (1975) 2 NSWLR 744 at p.750D, Bates' case in (1985) 2 NSWLR 89 at p.98E, and cf. the remarks of the English Divisional Court about travel to Kenya in Re Drummond (1957) Crim LR 682. But travel to New Zealand was easy enough in 1966 when the relevant statute was passed, and if anything, even easier last year when s.27 was recast. The legislature must have acted on the view that even the little trouble presently involved in travelling to New Zealand, coupled with the disruption in the accused's life, and the possibility of having to await trial in gaol, might be sufficient in some cases to swing the balance in favour of the accused in an application under s.27.
Nevertheless, it appears to me at present to require a stronger case of injustice or oppression, to warrant refusal of extradition, than was necessary when travel was more arduous. Here, in my view enough has been shown to require the conclusion that it would be unjust and oppressive to surrender the applicant on the detention charge. It should be added that I make no finding of absence of good faith in respect of either charge, on the part of the "complainants" or of Det. Sgt. Currie; it is for that reason that I have (as mentioned above) found it unnecessary to decide whose good faith must be considered.
The assault case differs in a number of respects from the detention case. The so-called complainant is not asserted to be mentally deficient. It appears to be common ground that the child in question was assaulted during the period in question; the issue is: by whom? There is not, of course, any difficulty in the path of the prosecution corresponding to the apparent non-existence of the pit during most of the period mentioned in the charge. There seems to have been opportunity for the applicant to assault the child and witnesses have been named who are apparently prepared to say that he did so.
Therefore, as to the assault charge I am not, on balance, satisfied that the applicant's case has been made out, although some of the factors mentioned above with respect to the detention charge operate in the applicant's favour.
It remains to be added that in my view par.(b) of s.27 is not to be read as eiusdem generis with the sub-pars. of (a): cf. McArthur v. Williams (1936) 55 CLR 324 at pp 331, 332 and Re Narayjan Singh (1961) 2 A11 ER 565.
In the result, the applicant succeeds with respect to the detention charge, and fails on the assault charge.

[1986] FCA 393

17 SEPTEMBER 1986