FEDERAL COURT OF AUSTRALIA
New Zealand v Johnston [2011] FCAFC 2
Citation: New Zealand v Johnston [2011] FCAFC 2 Appeal from: New Zealand v Johnston [2010] FCA 958 Parties: NEW ZEALAND v BRIAN JOHNSTON and MAGISTRATE BUSCOMBE File number: NSD 1221 of 2010 Judges: JACOBSON, FOSTER AND KATZMANN JJ Date of judgment: 11 January 2011 Catchwords: EXTRADITION – application by New Zealand to extradite a 69 year old male Australian citizen to answer serious charges of sexual interference with a minor alleged to have occurred in the 1970s – appeal from a single judge of the Federal Court pursuant to s 35(3) and s 35(6)(b) and (e) of the Extradition Act 1988 (Cth) (the Act) – nature of appeal – appeal is an appeal in the strict sense – in order for the Full Court to allow such an appeal, the Full Court must find error on the part of the primary judge – whether the primary judge erred by confirming an order that the fugitive be released made by a NSW magistrate – the primary judge held that it would be unjust to surrender the fugitive to New Zealand – the magistrate held that it would be oppressive to do so – whether the fugitive had proven that the NZ police officer who laid the charges did so not in good faith and not in the interests of justice within the meaning of s 34(2)(b) of the Act – the magistrate and the primary judge both held that the fugitive had failed to prove that the police officer had not acted in good faith and in the interests of justice – whether it was now open to the fugitive to challenge those findings on appeal – discussion of meaning of the composite expression “… unjust, oppressive or too severe a punishment …” in s 34(2) of the Act – whether it would be unjust to surrender the fugitive is a question of fact or of mixed fact and law – delay did not make extradition unjust – the primary judge erred in his ultimate finding – no error in finding extradition would not be oppressive – appeal allowed and extradition ordered Legislation: Extradition Act 1988 (Cth) ss 3, 28, 34, 35
Federal Court of Australia Act 1976 (Cth) ss 24–28
Service and Execution of Process Act 1901 (Cth) s 18(6)Cases cited: New Zealand v Johnston [2010] FCA 958 reversed
Allesch v Maunz (2000) 203 CLR 172 applied
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) (1983) 1 NSWLR 1 followed
Bannister v New Zealand (1999) 86 FCR 417 followed
Bates v McDonald (1985) 2 NSWLR 89 followed
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 applied
Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 applied
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 applied
Eastman v The Queen (2000) 203 CLR 1 applied
Fox v Percy
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Details
- Case
- [2011] FCAFC 2
- Decision Date
CaseChat Overview and Summary
In the case of New Zealand v Johnston, New Zealand sought the extradition of a 69-year-old Australian citizen, Brian Johnston, to face serious charges of sexual interference with a minor, which allegedly occurred in the 1970s. Johnston appealed a decision made by a single judge of the Federal Court, who had ordered his release. The appeal was heard by a Full Court of the Federal Court, which needed to determine whether the primary judge had erred in his decision. The key legal issues were whether the primary judge had erred in confirming the release order and whether the New Zealand police officer who laid the charges had acted in good faith and in the interests of justice.
The Full Court held that the primary judge had erred in concluding that it would be unjust to surrender Johnston to New Zealand. However, the Full Court found no error in the primary judge's conclusion that extradition would not be oppressive. The court emphasised the importance of prosecuting child sexual offenders and noted that the hardships experienced by Johnston would "pale into insignificance" compared to the legitimate public interest in having the charges dealt with in New Zealand. The Full Court also held that Johnston had not proven that the police officer had not acted in good faith and in the interests of justice. Therefore, the Full Court allowed the appeal and ordered Johnston's extradition to New Zealand.
The Full Court made several orders, including allowing the appeal, setting aside the orders made by the primary judge, quashing the order made by a NSW magistrate, and ordering a magistrate of the Local Court of NSW to surrender Johnston to New Zealand. Additionally, Johnston was ordered to pay the appellant's costs of the appeal and the review conducted by the primary judge.
The Full Court held that the primary judge had erred in concluding that it would be unjust to surrender Johnston to New Zealand. However, the Full Court found no error in the primary judge's conclusion that extradition would not be oppressive. The court emphasised the importance of prosecuting child sexual offenders and noted that the hardships experienced by Johnston would "pale into insignificance" compared to the legitimate public interest in having the charges dealt with in New Zealand. The Full Court also held that Johnston had not proven that the police officer had not acted in good faith and in the interests of justice. Therefore, the Full Court allowed the appeal and ordered Johnston's extradition to New Zealand.
The Full Court made several orders, including allowing the appeal, setting aside the orders made by the primary judge, quashing the order made by a NSW magistrate, and ordering a magistrate of the Local Court of NSW to surrender Johnston to New Zealand. Additionally, Johnston was ordered to pay the appellant's costs of the appeal and the review conducted by the primary judge.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by Moore J on 2 September 2010 be set aside.
3. The order made by the second respondent on 18 December 2009 be quashed.
4. A magistrate of the Local Court of New South Wales order, by warrant, that the first respondent be surrendered to New Zealand.
5. The first respondent pay the appellant’s costs of the appeal and the appellant’s costs of the review conducted by Moore J pursuant to s 35(1) of the Extradition Act 1988 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
At [59]–[68], his Honour addressed the question of oppression. His Honour referred to all of the matters raised by the first respondent but, in the end, at [67] of his Reasons, held: 67However, in my opinion, I should adopt a fairly robust approach to the effect of extradition on a male of advancing years charged with child sexual assault, such as the first respondent. To do otherwise would defeat the prosecution of child sexual offenders which often arise in the circumstances described in [55] and [57] above. As Madgwick J observed in New Zealand v Mahoney [sic] (as noted at [30]), hardships of the type identified by the first respondent would “pale into insignificance .... against the strong legitimate public interest in both Australia and New Zealand in having the charges dealt with in New Zealand”. I am not satisfied that [sic] would be oppressive to surrender the first respondent to New Zealand.NEW ZEALAND’S EVIDENCE IN SUPPORT OF EXTRADITION In support of extradition, New Zealand read two affidavits sworn by Detective Stickland. In addition, it relied upon an affidavit of a formal nature sworn by an Australian Federal agent. There was also some evidence from an officer of the Department of Immigration and Citizenship (DIAC) concerning the immigration status of the first respondent’s current wife (J) and some evidence concerning the payment of Australian pensions in New Zealand. In his first affidavit, Detective Stickland addressed the requirements of the offences with which the first respondent stands charged, set out a summary of the relevant facts constituting the offences, gave some evidence as to the identification of the first respondent and then addressed the question of delay as follows:Delay in Reporting to Police16.Extradition is sought for offences committed between 3rd August 1973 and 11th June 1977; however, [A] did not report the offences to police until March 2006.17.Since March 2006 numerous enquiries have been made during the investigation in order to obtain sufficient evidence to support this extradition. This has included obtaining statement [sic] from family members living in Australia. In his second affidavit, Detective Stickland gave a much more detailed account of the police investigation which occurred after A first made her complaint. A first made her complaint on 20 March 2006 and provided a statement to the New Zealand Police over three days between 30 March 2006 and 2 April 2006. In May 2006, the New Zealand Police officer who was then in charge of the investigation was informed by a New South Wales Police detective that the first respondent had been charged in Australia with offences against the daughter of D, a half-sister of A, whose biological mother was Grace but whose father was not the same man as A’s biological father. In June 2006, the New Zealand Police decided that they would await the result of the first respondent’s trial in Australia on the charges involving D’s daughter before taking any further steps to extradite the first respondent to New Zealand. On 10 December 2007, the first respondent was acquitted of the charges involving D’s daughter. In early 2008, A’s March/April 2006 complaint made to the New Zealand Police was referred to a specialist unit within the New Zealand Police (called the Adult Sexual Assault Team) based in Otahuhu (NZ). That specialist unit was the unit responsible for investigating sexual assault matters for the whole of the Manuku area.
Decision
Reasons for decision
For the above reasons, the learned primary judge was correct in the conclusion which he reached on oppression. CONCLUSIONS In our view, the primary judge erred in concluding that it would be unjust to surrender the first respondent to New Zealand. However, his Honour was correct in the decision which he made in respect of the first respondent’s contentions based upon s 34(2)(b) of the Act. He was also correct when he concluded that it would not be oppressive to surrender the first respondent to New Zealand. For these reasons, the appeal should be allowed and appropriate consequential orders made. There will be orders accordingly. On 8 October 2010, Jagot J expedited the hearing of this appeal. On that day, her Honour also ordered that: 3.On the undertaking of the First Respondent, Brian Johnston, to the Court proffered by his solicitor, Emanuell Conditsis, that he will appear at the hearing of the appeal and otherwise as required by the Court and pursuant to s35(6)(g)(iv) of the Extradition Act 1988, the First Respondent be released on bail until the appeal has been heard. At the end of the hearing of the appeal, this Court ordered that, to the extent that it may be necessary, Order 3 made by Jagot J on 8 October 2010 be varied so that the first respondent’s bail be continued up to the delivery of judgment. That variation was ordered upon the basis of an undertaking given to the Court by the first respondent by his legal representative that the first respondent would be present in Court when judgment is delivered. We expect, therefore, that the first respondent will be present in Court when these Reasons for Judgment are published.
Ratio Decidendi
Legal Principle Established
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