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New Zealand v Venkataya

New Zealand v Venkataya

Case [1995] FCA 387 26 May 1995

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CATCHWORDS

EXTRADITION - Extradition Act 1988, s 34(2) - whether it would be unjust or oppressive to surrender an accused person to New Zealand -effect of a lengthy period having elapsed since the alleged offences - application for surrender in connection with alleged sexual abuse of foster children - alleged offences occurring from 17 to 23 years earlier - accused living in Australia with family for over a decade - significance of family disruption, loss of security and financial hardship - significance of New Zealand courts having power to ensure a fair trial.

Extradition Act 1988, ss 34(2), 35
Service and Execution of Process Act 1901, s 18(6)
Extradition (Commonwealth Countries) Act 1966, s 27

Binge v Bennett (1988) 13 NSWLR 578
Narain v Director of Public Prosecutions (1987) 15 FCR 411
Bates v McDonald (1985) 2 NSWLR 89
Carmady v Hinton (1980) 23 SASR 409
Perry v Lean (1985) 39 SASR 515
Lewis v Wilson (1987) 90 FLR 251
Butler v Morahan (1988) 94 FLR 372
Hicks v Martin (1990) 27 FCR 416
Bryan v Preston (1982) 64 FLR 46
Edmonds v Andrews (1987) 85 FLR 419
Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779
White v Cassidy (1979) 40 FLR 249
R v Governor of Pentonville Prison; ex parte Narang [1978] AC 247
Clear v Holyoak [1993] 1 Qd R 376
Jago v District Court of New South Wales (1989) 168 CLR 23

NEW ZEALAND v KADIR ALI VENKATAYA & ANOR
NG 764 OF 1994

Sackville J.
26 May, 1995
Sydney

IN THE FEDERAL COURT OF AUSTRALIA    )
NEW SOUTH WALES DISTRICT REGISTRY    )    No. NG 764 of 1994
GENERAL DIVISION  )

BETWEEN:

NEW ZEALAND
Applicant

AND:

KADIR ALI VENKATAYA
First Respondent

AND:

CAROLYN JANE BARKELL
Second Respondent

CORAM:     SACKVILLE J.
PLACE:     SYDNEY
DATE:     26 May 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

the order made by the second respondent on 24 October 1994 is confirmed; and

the applicant is to pay the costs of the first respondent.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA    )
NEW SOUTH WALES DISTRICT REGISTRY    )    No. NG 764 of 1994
GENERAL DIVISION  )

BETWEEN:

NEW ZEALAND
Applicant

AND:

KADIR ALI VENKATAYA
First Respondent

AND:

CAROLYN JANE BARKELL
Second Respondent

CORAM:     SACKVILLE J.
PLACE:     SYDNEY
DATE:     26 May 1995

REASONS FOR JUDGMENT

The Proceedings
The applicant, New Zealand, seeks an order pursuant to s.35(2)(b) of the Extradition Act 1988 ("the 1988 Act") quashing an order made by the second respondent, Ms C.J. Barkell, Magistrate, on 24 October 1994. The second respondent's order was made under s.34(2) of the 1988 Act and required the first respondent, who had been arrested in Australia on 14 August 1994, under an indorsed New Zealand warrant, to be released. The warrant, which had been indorsed under the Act by a magistrate in New South Wales, sought the arrest of the first respondent for the offence
of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading New Zealand v Venkataya

Details

AGLC: New Zealand v Venkataya [1995] FCA 387
Case: [1995] FCA 387
Decision Date: 26 MAY 1995

CaseChat Overview and Summary

New Zealand sought an order quashing an order made by a magistrate that Kadir Ali Venkataya, the first respondent, should be released from custody. Venkataya had been arrested under a New Zealand warrant alleging sexual abuse of two foster children. The magistrate had ordered Venkataya's release on the basis that the lengthy period that had elapsed since the alleged offences made it unjust and oppressive to surrender him to New Zealand. Venkataya's wife, Carolyn Jane Barkell, the second respondent, submitted to the order of the Court, save as to costs. Venkataya contended that the magistrate had erred in law and failed to have regard to the seriousness of the charges against him. He submitted that the delay in bringing charges against him did not occasion any real prejudice and that the New Zealand courts could be relied upon to ensure that he received a fair trial. The Court concluded that the magistrate's order should be confirmed and that New Zealand should pay Venkataya's costs. The Court held that Venkataya had satisfied the terms of s.34(2) of the Extradition Act 1988, because the surrender of Venkataya to New Zealand would be oppressive, given the lengthy period that had elapsed since the alleged offences, the disruption to Venkataya's settled domestic life, and the difficulties that the delay in instituting proceedings had caused for Venkataya in preparing his defence.

Orders