FEDERAL COURT OF AUSTRALIA
New Zealand v Johnston [2010] FCA 958
Citation: New Zealand v Johnston [2010] FCA 958 Parties: NEW ZEALAND v BRIAN JOHNSTON and MAGISTRATE MARK BUSCOMBE File number: NSD 4 of 2010 Judge: MOORE J Date of judgment: 2 September 2010 Corrigendum: 18 October 2010 Catchwords: EXTRADITION – review of Magistrate's decision not to extradite first respondent to New Zealand – status of Magistrate's decision on rehearing – eligibility for surrender to New Zealand – whether the allegation of the offence was not made in good faith or in the interests of justice – whether a lengthy period has elapsed since the offence was allegedly committed – whether surrender would be unjust, oppressive or too severe – acceptance of argument of injustice due to actual and potential prejudices – rejection of argument of oppression due to first respondent's health, marriage, residency, financial status and employment Legislation: Extradition Act 1988 (Cth) ss 28, 32, 34, 35 Cases cited: Bannister v New Zealand (1999) 86 FCR 417
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Edmonds v Andrews (1987) 85 FLR 419
Heslehurst v Government of New Zealand [2000] FCA 1311
Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634
Kenneally v New Zealand (1999) 166 ALR 625
Longman v R (1989) 168 CLR 79
New Zealand v Moloney (2006) 154 FCR 250
New Zealand v Venkataya (1995) 57 FCR 151
Perry v Lean (1985) 39 SASR 515
R v Adler (unreported, Court of Criminal Appeal of New South Wales, 11 June 1992)
R v Edwards (2009) 83 ALJR 717Date of hearing: 2 & 3 August 2010 Date of last submissions: 4 August 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Applicant: J Renwick Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Solicitor for the First Respondent: Conditsis & Associates
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 4 of 2010
BETWEEN: NEW ZEALAND
ApplicantAND: BRIAN JOHNSTON
First RespondentMAGISTRATE MARK BUSCOMBE
Second Respondent
JUDGE:
MOORE J
DATE OF CORRIGENDUM:
18 OCTOBER 2010
CORRIGENDUM
1.In paragraph 67, line 5 of the Reasons for Judgment, the reference to "Mahoney" should read "Moloney".
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 18 October 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 4 of 2010
BETWEEN: NEW ZEALAND
ApplicantAND: BRIAN JOHNSTON
First RespondentMAGISTRATE MARK BUSCOMBE
Second Respondent
JUDGE:
MOORE J
DATE OF ORDER:
2 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
2.The application be dismissed.
3.The applicant pay the respondents' costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE…
Keep reading for free
Create a free CaseChat account to read New Zealand v Johnston and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2010] FCA 958
- Decision Date
CaseChat Overview and Summary
This case involved New Zealand seeking the extradition of Mr Johnston from Australia under Section 34 of the Extradition Act 1988 (Cth). The Magistrate was required to decide whether the extradition should proceed or whether it would be oppressive and unjust to surrender Mr Johnston to New Zealand. The Magistrate found that the serious nature of the allegations against Mr Johnston was outweighed by the delays in the complaint, investigation, and laying of charges. Additionally, the Magistrate considered Mr Johnston’s current circumstances, including his age, medical conditions, and limited assets, and found that surrendering him to New Zealand would be oppressive.
The Magistrate balanced the seriousness of the charges against Mr Johnston's present circumstances. His Honour considered the serious and heinous nature of the allegations, which included multiple counts of rape and other sexual offences. However, his Honour also took into account the lengthy period between the alleged offences and the extradition request, the delays in the investigation and laying of charges, and Mr Johnston's current personal circumstances, including his age, health conditions, and lack of assets. The Magistrate concluded that surrendering Mr Johnston to New Zealand would be oppressive and unjust, leading to the decision to release him under Section 34(2) of the Act.
The Magistrate's reasoning was grounded in the statutory provisions of Section 34(2) and the principles established in previous cases such as New Zealand v Venkataya (1995) 57 FCR 151. His Honour found that the combination of the serious nature of the allegations and the delays in the proceedings, along with Mr Johnston's current personal circumstances, justified the decision to release him. The Magistrate's decision was detailed, taking into account all relevant factors, and demonstrated a careful consideration of the statutory criteria.
The final orders were that Mr Johnston was to be released and not surrendered to New Zealand, as it would be unjust, oppressive, or too severe a punishment. The Magistrate’s decision was based on a comprehensive analysis of the statutory criteria and the specific circumstances of Mr Johnston.
The Magistrate balanced the seriousness of the charges against Mr Johnston's present circumstances. His Honour considered the serious and heinous nature of the allegations, which included multiple counts of rape and other sexual offences. However, his Honour also took into account the lengthy period between the alleged offences and the extradition request, the delays in the investigation and laying of charges, and Mr Johnston's current personal circumstances, including his age, health conditions, and lack of assets. The Magistrate concluded that surrendering Mr Johnston to New Zealand would be oppressive and unjust, leading to the decision to release him under Section 34(2) of the Act.
The Magistrate's reasoning was grounded in the statutory provisions of Section 34(2) and the principles established in previous cases such as New Zealand v Venkataya (1995) 57 FCR 151. His Honour found that the combination of the serious nature of the allegations and the delays in the proceedings, along with Mr Johnston's current personal circumstances, justified the decision to release him. The Magistrate's decision was detailed, taking into account all relevant factors, and demonstrated a careful consideration of the statutory criteria.
The final orders were that Mr Johnston was to be released and not surrendered to New Zealand, as it would be unjust, oppressive, or too severe a punishment. The Magistrate’s decision was based on a comprehensive analysis of the statutory criteria and the specific circumstances of Mr Johnston.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Section 34 provides a mechanism for a person otherwise liable for extradition to New Zealand to resist extradition. It provides that once a person has been arrested under an indorsed New Zealand warrant and a request is made to a magistrate for extradition, the magistrate must, by warrant, order that the person be surrendered to New Zealand, unless subsection 34(2) is satisfied. If the magistrate finds that the offence is of a trivial nature, the allegation of the offence was "not made in good faith or in the interests of justice", a lengthy period has elapsed since the offence was committed or "for any other reason, it would be unjust, oppressive or too severe a punishment" to surrender the person, the magistrate must release the person. The section provides:(1) Where:(a)either:(i)a person has been remanded after being arrested under an indorsed New Zealand warrant; or(ii)a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person; and(b)a request is made to a magistrate by or on behalf of the person or New Zealand for proceedings to be conducted under this section;the magistrate shall, unless the magistrate makes an order under subsection (2):(c)by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand; and(d)by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison.(2) If the magistrate is satisfied by the person that, because:(a)the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;(b)if that offence is an offence of which the person is accused-the accusation was not made in good faith or in the interests of justice; or(c)a lengthy period has elapsed since that offence was committed or allegedly committed;or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released.(3) The magistrate shall, after making an order in relation to the person under paragraph (1)(c), inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 35.(4) In the proceedings under this section, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued.In this matter both before the Magistrate and in this Court the first respondent has sought to invoke paragraphs (b) and (c) of s 34(2) and also identify other reasons why it would be unjust, oppressive or both to surrender him to New Zealand. Subsection (4) reinforces what is apparent from the object discussed earlier, namely that generally the magistrate or this Court on review is not concerned with the guilt or innocence of the person whose extradition is sought. This is important notwithstanding that there are some authorities that suggest a court may consider the likely outcome of the proceedings if they are attended by some fundamental flaw.The facts and allegations in outline
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The first respondent is presently unemployed and receives a pension paid by Centrelink. His assets are meagre. The first respondent suffers from a number of medical conditions.Decision of the Magistrate – 18 December 2009 In overview, his Honour balanced the seriousness of the charges with the present circumstances of the first respondent in the context of the time which had elapsed between when the alleged offences took place and when extradition was sought. Towards the beginning of his reasons, his Honour summarised the alleged offences describing them as being of the most serious kind and he noted that they included four counts of rape, one count of indecent assault, one count of assault, one count of permit a girl under 12 years do an indecent act being fellatio, one count of doing indecent act upon a girl under 12 years being a touching of the breasts and digital penetration. When the Magistrate commenced to explain his conclusion, his Honour said he was very conscious of the serious and heinous nature of the allegations and the type of allegations that were made. Nonetheless, his Honour decided when taking all factors into account to release the first respondent under s 34(2) of the Act. His Honour observed in his concluding remarks that:… in particular when regard is had to the delay in complaint, the delay in the investigation of the complainant's statement and the delay in the laying of the charges and the seeking of the extradition of Mr Johnston, his age and medical condition, the impact surrender will have on his ability to be employed, retain his longstanding accommodation, the impact upon his new wife which impacts upon him, that it would be oppressive to surrender him to New Zealand. For the purposes of these reasons, it is probably desirable to set out his Honour's reasons in a little more detail. After commencing by recounting some of the background and the statutory provisions, his Honour identified the principal arguments advanced on behalf of the first respondent. The two principal arguments were: (i) The accusations made against the first respondent were not made in good faith and/or in the interests of justice. (ii) A lengthy period had elapsed since the offences were allegedly committed such that the first respondent suffered prejudices in preparing his defence with the consequence that extradition would be unjust, oppressive or too severe, particularly given his personal circumstances. His Honour then addressed the authorities dealing with s 34(2) which illuminated the applicable principles. At the forefront of his Honour's discussion was the decision of Sackville J in New Zealand v Venkataya (1995) 57 FCR 151. In that matter New Zealand had unsuccessfully sought the extradition of a person charged with serious sexual offences against two young girls who had been in his and his then wife's foster care. The alleged offences had taken place in the order of two decades earlier. His Honour noted aspects of Sackville J's reasoning including a discussion in Venkataya of the concepts of "unjust" and "oppressive". In his reasons in this matter, his Honour said correctly: There is an overlap between the concepts of "unjust" and "oppressive' although they are directed to two different concepts. Unjust is primarily concerned with the risk of prejudice to the accused in relation to the conduct of the proposed trial. Oppressive is concerned more with the hardship to an accused resulting from changes in his circumstances that have occurred prior to the proceedings for extradition…
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.