New Zealand v Venkataya
[1995] FCA 387
•26 MAY 1995
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 having sexual intercourse with a girl, then aged under 12, contrary to s.132(1) of the Crimes Act 1961 (NZ). As will be seen, the complainant, to whom I shall refer as L., was a foster child living at the time of the alleged offence in the first respondent's household in New Zealand.
It is alleged by New Zealand that the offence referred to in the warrant occurred between January 1973 and January 1974, over 20 years ago. It is also alleged that the first respondent committed other, very serious, sexual offences against L. and her sister, to whom I shall refer as S., over the period January 1972 to February 1978. Thus the most recent of the offences is said to have occurred some 17 years ago. The oldest is said to have occurred about 23 years ago.
The first respondent has lived an apparently exemplary life in Australia since taking up residence in this country, with his present wife, in December 1983. The case presents the difficult question of whether the first respondent has satisfied the terms of s.34(2) of the 1988 Act and is therefore entitled to be released. To do this, the first respondent must show that, in the circumstances of the case, because "a lengthy period has elapsed since [the offence in relation to which the warrant was issued] was allegedly committed...it would be unjust [or] oppressive to surrender [him] to New Zealand".
The second respondent has submitted to the order of the Court, save as to costs.
The Legislation
The 1988 Act codifies the law relating to extradition of persons from Australia to "extradition countries" and to New Zealand. The provisions governing extradition from Australia to New Zealand are contained in Part III of the 1988 Act, which provides for an application to be made, in the statutory form, on behalf of New Zealand, to an Australian magistrate seeking indorsement of a New Zealand arrest warrant: s.28(a). If the person for whose arrest the warrant is in force is in Australia, the magistrate must indorse the warrant for execution in Australia by a police officer: s.28. A person apprehended under an indorsed New Zealand warrant must be brought as soon as practicable before a magistrate in the State or Territory in which he or she is arrested: s.32(1). The magistrate is to remand the person in custody or, if special circumstances exist, on bail for such period as may be necessary to enable proceedings for the purposes of s.34 to be conducted: s.32(2),(3).
Section 34(1) provides that, where a person has been remanded after being arrested under an indorsed New Zealand warrant, and a request is made to a magistrate on behalf of the person or New Zealand for proceedings under the section, the magistrate must order the person to be surrendered to New Zealand unless an order is made under s.34(2). Section 34(2) provides as follows:
"If the magistrate is satisfied by the person that, because:
(a)the offence in relation to which any endorsed 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."
Where an order has been made under s.34(2) New Zealand may apply, inter alia, to the Federal Court for a review of the order:s.35(1). The Court may confirm the magistrate's order or may quash the order: s.35(2). If an order under s.34(2) is quashed, the Court may order, by warrant, that the person be surrendered to New Zealand: s.35(2)(b)(ii).
On an application by New Zealand for review of an order made under s.34(2), the following provisions of s.35(6) apply:
"(d)...the court...shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate;
...
(f)if...the person has been released, the court... may order the arrest of the person...".
As contemplated by s.35(6)(d) of the 1988 Act, the transcript of the whole of the proceedings before the magistrate was admitted into evidence in this Court. Additional evidence, both in the form of affidavits and oral evidence, was also adduced. Neither the first respondent nor his present wife, Ms Venkataya, gave
evidence in this Court. However, each gave evidence before the magistrate and was not challenged on that evidence in cross-examination.
The First Respondent's Background and Present Circumstances
The first respondent was born in Fiji in 1939 and is thus now aged 56. He left Fiji at the age of two and lived in Canada until 1960, when he travelled to New Zealand. He remained in that country until 1983, except for about four or five months in 1979, when he returned to Canada. In 1983 the first respondent took up residence in Australia with Ms Venkataya, whom he had married in Canada in 1979. In November 1984 he and his wife acquired a house at Penrith. The purchase price was $78,000, of which $70,000 was borrowed. They have lived in that house ever since. The first respondent and his wife have two children, the older born in April 1989 and the younger in January 1993. Both children were born in Australia and have always lived with their parents.
In 1965, in New Zealand, the first respondent married his first wife, to whom I shall refer as Ms R. Ms R. was then about 19. In about March 1971 the first respondent and Ms R. became the foster parents of three sisters, who were distant relatives of Ms R. The sisters and their two brothers had previously been in the care of the Director-General of Social Welfare in New Zealand, following the death of their mother. The youngest sister, S., was born in February 1965 and thus was aged six in March 1971; the middle sister, L., was born in January 1962 and
thus was aged nine in March 1971; the oldest sister, C., was aged about 10 or 11 in March 1971. In June 1973 the first respondent and Ms R. became foster parents to the two brothers of the sisters. The brothers were apparently then aged about six and 15, respectively.
On 13 July 1976, L, who was then aged 14, gave birth to a boy. The boy was placed for adoption shortly after birth and subsequently adopted. At this time the first respondent, Ms R. and the children were living in a suburb of Wellington.
In 1977, the first respondent and Ms R. separated and they ultimately divorced in 1979. According to the first respondent, the separation was brought about because Ms R., over a period of some time, had developed and maintained a relationship with the natural father of the five foster children. At some stage after the separation, Ms R. went to live with the children's father and ultimately all five children joined Ms R. and the father. Thereafter, the first respondent claimed that he did not see any of the children, except for the older boy whom he saw quite often. The first respondent had contact with Ms R. from time to time until he left New Zealand for Australia in 1983. Ms R. married the father of the foster children, presumably shortly after she and the first respondent were divorced in 1979.
After the first respondent and Ms R. separated in 1977, the first respondent lived in a flat in another suburb of Wellington. He worked as a mechanic, under his own name. After being injured
at work in 1979 the first respondent travelled to Canada, where he married Ms Venkataya. After his return to New Zealand, the first respondent gained other employment. In the meantime he and Ms R. sold their house and shared the proceeds. In 1980 the first respondent and Ms Venkataya purchased a house in New Zealand, apparently in their joint names. It is clear that the first respondent made no attempt to hide his identity or whereabouts at any time when he lived in New Zealand.
In about late 1982 or early 1983 the first respondent was injured in a car accident. Following this, he again spent some months in Canada and returned to New Zealand. He then decided to purchase an automotive business in St Mary's, a suburb of Sydney. He purchased the business for $50,000, the purchase price being financed partly through the sale of the house in New Zealand and partly through a bank loan. The first respondent and Ms Venkataya travelled to Australia to take up residence on 18 December 1983. The first respondent has always used his own name while living in Australia and it is clear that he has not attempted to hide his identity in this country.
The first respondent has carried on his automotive business continually since his arrival in Australia. He presently has two employees, an apprentice and a labourer. The first respondent suffers some disabilities as a result of his car accident and thus requires assistance for some of the physical work required in the business. The business produces modest returns, principally because of the effects of the recent recession. The
first respondent draws some $200 per week after "paying bills", despite the fact that he works seven days per week. The "bills" include interest on loans totalling about $40,000, leasing payments for equipment totalling about $836 per month, rent of about $2,000 per month and vehicle lease payments of $625 per month.
Ms Venkataya has worked as a bank officer since shortly after arriving in Australia. She pays the housing loan of $840 per month out of her earnings and receives about $650 per month after payment of the housing loan and tax. The first respondent and Ms Venkataya pay about $500 per month in child care expenses. They have no substantial savings.
The first respondent returned to New Zealand for several weeks in 1986. During that time he hired a car, using his correct name and giving his New South Wales address. He also saw his former wife's parents. In September 1992 the first respondent spent some ten days in New Zealand and made contact with his former wife's mother and sister. During that visit he also gave his New South Wales address to a number of people.
The Complaint and Related Evidence
The New Zealand warrant was issued as a consequence of complaints made by L. and S. at the Upper Hutt Police Station on 8 and 14 October 1992 respectively. Both L. and S. made statements to the police. It appears that L.'s complaint was made after she had undergone counselling. Ms R. made a statement some time later.
In her statement to the police, L. gave an account of what she described as "abuse" by the first respondent, occurring on about a weekly basis over a period of years from the time she was aged about 10 (that is, from 1972). Her statement contained details of particular incidents involving digital penetration of her vagina by the first respondent and acts of sexual intercourse at the instigation of the first respondent. Some of these acts were alleged to have occurred at home, when the first respondent would take precautions to ensure that other family members were absent or busy elsewhere. Other incidents are said to have occurred at or near the first respondent's then place of work.
L. recounted that Ms R. took her to a medical centre in 1976 because she (L.) was gaining weight. She stated that, at that stage, she was diagnosed as being six months pregnant. After seeing the doctor, L. told Ms R. that the first respondent was the father. According to L., Ms R. and the first respondent subsequently coached her to tell the Department of Social Welfare and the police that she had been raped by a Pacific Islander on the way home from school. She was threatened that, if she did not tell this story, the family would be broken up, the children would be placed in separate foster homes, and the first respondent would go to gaol.
The evidence on the application included file notes prepared by a social worker, relating to events occurring during the period 10 to 20 May 1976. The notes suggested that the social worker had discussions on 11 May 1976 with Ms R. and the first
respondent. According to the notes, Ms R. reported that they had just discovered that L. was eight months pregnant. The notes did not provide a verbatim account of what was said, although they recorded that both Ms R. and the first respondent were worried about the legal implications of L. having been raped. The social worker also recorded that the family was apparently anxious to contact the police about the rape.
The notes stated that L. and Ms R. subsequently accompanied the social worker to the police station where an interview took place. The notes recorded that L.'s "interrogation was extensive". The social worker was present for "most" of the interview, but Ms R. was not. L. presented a "classic rape story" of being dragged into bushes at night, but the police (according to the notes) did not believe L.'s story. L. remained "incredibly unemotional throughout the questioning". The police told Ms R. that if it was not a rape, but rather a case of unlawful consensual sexual intercourse, they would like to speak to the "lad" involved, but he would not be prosecuted.
The notes also referred to subsequent conversations between the social worker and the first respondent, Ms R. and L. These conversations apparently mostly concerned adoption of L.'s child. However, according to the notes, the social worker had a "long chat" with L, in the absence of the foster parents. While this "chat" apparently also dealt with the proposed adoption of the child, L. expressed her "feeling that she trusted the Venkatayas as capable parents".
S.'s statement to the police in 1992 recounted a particular series of events taking place when she was 12 years old, which would mean that the events occurred in 1977. S. stated that the first respondent had forced her, among other things, to have oral sex and to engage in repeated acts of sexual intercourse. According to S.'s account, these events occurred at a time when S. was living with her natural father. Apparently Ms R. was then living separately from the first respondent, but was not yet living with the natural father, although the statement was not entirely clear on this point. According to S., the events occurred when she and her younger brother went to stay overnight with the first respondent. S. was collected by her father from the first respondent's residence the very day one of the acts of intercourse is alleged to have taken place.
Sergeant Joseph, the investigating officer, made attempts to locate Ms R. in the course of his investigations, after receiving the complaints in October 1992. However, he was not able to contact her until July 1993. Ms R. subsequently became ill and did not finalise her statement until August 1993. Her statement was to the effect that L. had told her in May 1976 that the first respondent was the father of the child. This occurred on the way home from seeing the doctor who had confirmed L.'s pregnancy. According to Ms R.'s statement, the first respondent admitted to her at the time that he was the father and expressed his fear of going to prison. Ms R. decided to help "both of them" by joining in the story that L. had been raped. L. had not previously complained to her about the conduct of the first respondent, although Ms R. had a feeling he was the father before L. told her.
No evidence was presented from the complainants themselves to explain the delay of many years in their making complaints to the authorities against the first respondent. A police summary, which was in evidence, noted that when L. made her complaint on 8 October 1992, she was accompanied by two counsellors. At that time she advised that her sister, S., had experienced similar abuse by the first respondent. As I have said, S. made her statement to the police six days later. The police summary also recorded that both L. and S. had experienced "considerable difficulty" in relation to what had occurred and that it was only through counselling that they had been able to make known their accounts of events.
The Arrest
Following the statements made by L. and S. in October 1992, Sergeant Joseph made efforts to ascertain the whereabouts of the first respondent, but did not succeed until July 1993. At that time, Sergeant Joseph obtained a record of the first respondent's most recent travel to New Zealand from Australia, which showed his correct Australian address. After having obtained the statement of Ms R, Sergeant Joseph considered that there was sufficient evidence to arrest the first respondent. The pressure of work on Sergeant Joseph seems to have accounted for the delay until June 1994, when he sought a warrant for the arrest of the first respondent.
On 3 June 1994, a Judge of the District Court at Lower Hutt, New Zealand, issued a warrant for the arrest of the first respondent. The warrant recited that an information had been laid by Sergeant Joseph against the first respondent, alleging that between 1 January 1973 and 30 January 1974 he had had sexual intercourse with L., a girl then under the age of 12 years, contrary to s.132(1) of the Crimes Act 1961 (NZ).
On 18 August 1994 an Australian Federal Police Officer applied to a magistrate under s.28 of the 1988 Act for an endorsement of the New Zealand warrant. The application was supported by an affidavit which was headed, apparently erroneously, "affidavit in support of application for provisional arrest warrant". The affidavit annexed a statement of facts said to have been prepared by the New Zealand police. The statement summarised the allegations made by both L. and S. and set out the charges that had been laid against the first respondent as follows:
"1.INDECENT ASSAULT ON GIRL UNDER 12
Crimes Act 1961 Section 133(1)(a)
Penalty: 10 years imprisonment
SEXUAL INTERCOURSE WITH GIRL UNDER 12
Crimes Act 1961 Section 132(1)
Penalty: 14 years imprisonment
2 X SEXUAL INTERCOURSE OR INDECENCY GIRL
12-16
Crimes Act 1961 Section 134(2)(a)
Penalty: 7 years imprisonment
3 x RAPE
Crimes Act 1961 Section 128(1)
Penalty: 14 years"
This statement of charges appears to relate to the informations
laid against the first respondent in New Zealand, which were in evidence. These alleged indecent assault of L., then under 12, between 1 January 1972 and 30 January 1974; indecent assault of L., then aged between 12 and 16, between 30 January 1974 and 30 January 1977; indecent assault of S., then aged between 12 and 16, between 1 August 1977 and 8 February 1978; and rape of S. between 1 August 1977 and 8 February 1978. The magistrate duly indorsed the New Zealand warrant.
On 19 August 1994 the first respondent was arrested. So far as appears, he had no prior notice that he was to be charged with offences allegedly occurring between 16 and 22 years before the date of his arrest. The first respondent was remanded on bail, subject to certain conditions including reporting requirements and the lodging of a surety in the sum of $100,000 to appear before the Local Court for the purpose of proceedings under s.34 of the 1988 Act.
The Magistrate's Decision
The hearing took place before the learned magistrate, on 14 October 1994 and 24 October 1994. In her reasons for ordering the first respondent's release, the magistrate referred to the apparent destruction of the records of the interview that took place between the police and L. in 1976. She also referred to the loss of records relating to the police investigation conducted at that time.
The substance of the magistrate's reasons is contained in the following passage:
"I am satisfied that there is a risk of prejudice to Mr Venkataya because of the lack of availability of this evidence. I also note that I am satisfied that there would be hardship, to the extent of it being oppressive, for Mr Venkataya to return to New Zealand. He has established himself in Australia openly. He runs a business, which he owns. The business may not be a matter of great moment, but it is his; he has built it up, and he owns it. It is uncontested that he would lose that business were he to be returned to New Zealand.
He has openly built a life for himself, and that life includes a dependent family, and it is more than just his business that would suffer. His family would also suffer, and that would have its effect in oppressiveness on him.
I also take into consideration the fact that bail, were he to return to New Zealand, would be opposed. I acknowledge that there is no indication to me that that opposition would succeed, but it is clearly a possibility that Mr Venkataya would be kept in custody for a period from 7 to 9 months whilst awaiting his trial in New Zealand.
I have given this much anxious consideration because, as I said, there is no doubt that the nature of the offence is one of gravity, and great gravity.
However, in the circumstances, I am satisfied that it would be unjust and oppressive to surrender Mr Venkataya to New Zealand, and I order that he be released."
Evidence on the Review Application
On the hearing of the review application, Sergeant Joseph gave evidence and was cross-examined, as he had been before the magistrate. Sergeant Joseph's evidence included an explanation of circumstances that had changed, or had been clarified, after the magistrate had ordered the first respondent's release on 24
October 1994.
In his evidence before the magistrate, Sergeant Joseph had said that his intention, as the informant, was to oppose any application for bail the first respondent might make to a New Zealand court. In the course of giving that evidence, Sergeant Joseph accepted that the likelihood was that, if the New Zealand court refused bail, the first respondent would remain in custody for a minimum period of seven to eight months pending trial. In his evidence in this Court, Sergeant Joseph stated that, following discussions with senior police officers and the Crown Solicitor's office in New Zealand, he had decided not to oppose any bail application by the first respondent, and to give instructions that no submissions should be made on such an application. Sergeant Joseph indicated that he expected the New Zealand court to attach conditions to any grant of bail, including imposing a requirement for a surety. But his intention was not to oppose any application by the first respondent to return to Australia pending the depositions (committal) hearing, or the trial.
According to Sergeant Joseph, the Police Prosecutor for Lower Hutt would be able to commence a depositions hearing within two weeks of the first respondent's extradition to New Zealand. The purpose of a depositions hearing in New Zealand is to determine whether the evidence against an accused person is sufficient to establish a prima facie case and to justify that person being committed for trial. The depositions hearing relating to the
first respondent would be conducted by way of hand-up statements. Witnesses other than the complainants, such as Ms R., could be cross-examined at the depositions hearing, but the complainants could not be cross-examined, except by leave of the court. The practice in New Zealand is usually to refuse leave in cases such as the present.
Sergeant Joseph stated that, if the first respondent were committed for trial, the trial could be expected to take place shortly before the end of 1995. However, he acknowledged that this estimate was based largely on estimates of average waiting periods for trials in New Zealand and that circumstances could change before the end of 1995. Furthermore, the position might be different if the first respondent were released on bail pending the trial, since cases involving persons in custody usually receive priority in the allocation of hearing dates.
After the magistrate made the order releasing the first respondent, Sergeant Joseph located the social worker who had prepared the file notes in May 1976. However, not surprisingly in view of the passage of time, the social worker had no memory of the relevant events, including the police interview with L. Sergeant Joseph had been unable to identify the police officer who had conducted that interview. No records, other than the social worker's file note, had been located relating either to the interview with L. or to any communications between the police and Ms R. The name of the doctor who had examined L. in May 1976 was known, but Sergeant Joseph had not yet made
extensive inquiries to locate his present whereabouts.
In his evidence before the magistrate, Sergeant Joseph had testified that, at the time of the police interview in 1976, police files were retained for seven years only and that any record of interview with L. would therefore no longer exist. I read that evidence as implying that Sergeant Joseph thought it likely that a record of interview was made in May 1976, but that it would have been discarded after about seven years. In his evidence in this Court, Sergeant Joseph was at some pains to stress that he had no means of ascertaining whether a record was ever made of the interview and, if so, what form that record might have taken. According to the Sergeant, one possibility was that a "form 101" might have been completed. This would merely have noted the name of the person interviewed and of the interviewing officer.
Sergeant Joseph acknowledged in his cross-examination that, under current conditions, he would expect an interview in relation to allegations of rape to be recorded. Sergeant Joseph did not say that he had specific information making it unlikely that a record would have been kept of such an interview in 1976. I infer that, having regard to the evidence that the "interrogation was extensive", and to the extremely serious nature of the allegations being investigated, it is more probable than not that the police officer conducting the interview would have made a record of the questions and answers. I also infer that the likelihood is that the record was destroyed or discarded in about
1983, in accordance with the practice to which Sergeant Joseph referred.
Inquiries by Sergeant Joseph had identified and located the child who had been born to L. in 1976 and later placed for adoption. However, because the child was studying, no approach was made to him until after December 1993. There was no evidence that blood tests or DNA tests had been carried out on the child (now aged 18), nor that any request had been made to the first respondent to supply blood samples for the purpose of carrying out such tests.
At the conclusion of the applicant's case, I remarked to Mr Gageler, who appeared for the applicant, that evidence might have been expected concerning the significance of DNA testing for a case such as this and the steps, if any, taken to arrange tests for the purpose of ascertaining the likelihood that the first respondent is the father of L.'s child. Mr Gageler, at that point, sought leave to reopen the applicant's case to adduce evidence relating to these matters. However, Mr Jeffreys, who appeared for the first respondent, objected to this course, contending that his client would be prejudiced by evidence on these issues at such a late stage and in the face of earlier court directions imposing a timetable for evidence to be filed in the proceedings. I declined to grant Mr Gageler leave to adduce further evidence on these issues. However, it appeared to be common ground between the parties that there is no legislation in force in New Zealand that compels an accused
person to undergo DNA or other testing for the purpose of establishing or disproving paternity in a particular case.
The Arguments
Mr Jeffreys, in substance, repeated the submissions that succeeded before the learned magistrate, although he acknowledged that it was now unlikely that the first respondent would be denied bail pending a trial in New Zealand. He contended that the terms of s.34(2) of the 1988 Act were satisfied, because the surrender of the first respondent to New Zealand at this stage, now some 17 to 23 years after the alleged offences, would be both unjust and oppressive. The surrender would be unjust because the passage of time had made it impossible for the first respondent to gain access to evidence which was crucial to his defence. In particular, the loss or destruction of the record of interview of May 1976, and the inability to identify the police officer who conducted the interview, placed the first respondent at a considerable disadvantage in mounting a defence. Had a complaint been made at any time before the first respondent took up residence in Australia in late 1983, it is likely that the record of interview and the police officer's evidence would have been available. The first respondent was not responsible for any portion of the delay in instituting proceedings for his apprehension.
Mr Jeffreys contended that the surrender would also be oppressive to the first respondent. He had not attempted to flee or hide his identity. He had lived an orderly life with his wife in
Australia for over eleven years. He had two children born in Australia. He had established and maintained a business. His family life would be severely disrupted if he were required to return to New Zealand and his business would be unlikely to survive. In these circumstances, the first respondent should be released.
I did not understand Mr Jeffreys to rely specifically on the delay between the making of complaints of October 1992 and the issue of the warrant in New Zealand in June 1994, although this period, of course, added to the already extremely lengthy delays that had occurred in instituting proceedings against the respondent.
Mr Gageler contended that the magistrate, in ordering the release of the first respondent, paid insufficient attention to the seriousness of the allegations against him. Moreover, it had been alleged that the first respondent had coached L. to lie to the police in 1976 and had threatened her with the break-up of the family if she revealed the truth. Thus he had been at least partially responsible for the delay in the reporting of the alleged offences. There was no particular reason to think that, even if a record of the interview of May 1976 had been created, its absence would occasion the first respondent any real prejudice. This was not a case where the principal witnesses were dead or unavailable, although the police officer who interviewed L. in 1976 could not be found. In any event, the extradition regime established by the legislation contemplated
that, save perhaps in truly exceptional cases, the New Zealand courts could be relied upon to ensure that the respondent received a fair trial. Thus any potential injustice to the accused could safely be left in the hands of the New Zealand courts to address and overcome.
Background to s.34(2) of the 1988 Act
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. Section 18(6) provided as follows:
"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 -
(d)order the discharge of the person;
(e)order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or
(f)make such other order as he thinks just."
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.
Construction of s.34(2) of the Act
Before turning to the principles established by the authorities, some points relevant to the operation of s.34(2) of the 1988 Act should be noted. First, s.34(2) specifically imposes upon the accused person the burden of satisfying the magistrate, or the Court hearing the application for review, that the matters specified in the sub-section have been established. This confirms the approach taken by the courts under s.27 of the 1966 Act: Narain v DPP, at 419-420; Bates v McDonald (1985) 2 NSWLR 89 (NSW CA), at 93, per Kirby P., 102, per McHugh J.A. Secondly, as I have noted, s.34(2) specifically identifies the lapse of "a lengthy period" since the alleged offence as a basis for finding that, in a particular case, it is unjust or oppressive to surrender the accused person to New Zealand. Thirdly, if the court is satisfied by the accused person that because a lengthy period has elapsed since the alleged offence, or for any other reason, it would be unjust or oppressive to surrender the person to New Zealand, the court shall order the person released. There is no residual discretion to decline to make such an order.
Fourthly, the Attorney-General's second reading speech for the Extradition Bill 1987, to which I was taken by Mr Gageler, contains this brief passage (Cth Parl. Deb., HR, 28 October 1987, p.1618):
"The Bill contains a special part which governs extradition relations with New Zealand. Our close ties with that country have made appropriate a reciprocal regime which bears a very close similarity to the extradition relations between the various Australian States and Territories contained in the Service and Execution of Process Act 1901. Fugitives are moved between Australia and New Zealand by a process based on the backing of warrants by magistrates. The whole process is normally handled by
the police in exactly the same way as an interstate extradition would be handled. The Bill's only innovation in this area is to permit temporary surrender to New Zealand."
This suggests an intention to assimilate the principles governing extradition to New Zealand generally to those then governing extradition within Australia. Under the regime in operation under the 1901 Act, it was well established that an accused person resisting interstate extradition bore a considerably heavier burden in seeking to establish oppression or injustice than did an accused person resisting extradition to a different country. This was because within Australia there is no "talismanic virtue in a State boundary line": Carmady v Hinton (1980) 23 SASR 409 (SA SCt/Banco), at 411, per Wells J. Generally speaking, for example, Australian courts have acted on the basis that any injustice to an accused should be dealt with by the court of the State or Territory responsible for ensuring a fair trial: Perry v Lean, (1985) 39 SASR 515 (SA SCt/Banco), at 518-519. Compare the principles governing a stay of criminal proceedings on the ground that a fair trial cannot be had: Jago v The District Court of New South Wales (1989) 168 CLR 23, at 26 ff, per Mason C.J., 45 ff, per Brennan J., 60-61, per Deane J., 71-72, per Toohey J., 75-78, per Gaudron J; Walton v Gardner (1993) 177 CLR 378, at 392-396, per Mason C.J., Deane and Dawson JJ.
However, trans-Tasman extradition does not necessarily involve precisely the same considerations as interstate extradition (leaving aside the altered regime introduced by the Service and Execution of Process Act 1992). For example, there is no equivalent to the full faith and credit provision in s.118 of the Constitution in force as between Australia and New Zealand. Nor, of course, are New Zealand courts subject to the superintendence of the High Court. Each of these factors has played a part in the reasoning of Australian courts in construing s.18(6) of the 1901 Act: Carmady v Hinton, at 411; Binge v Bennett, at 584. Furthermore, the language of s.34(2) is not identical to that in the 1901 Act. I have already referred to the absence in s.18(6) of any specific mention of lapse of time or delay since the alleged offences. Section 18(6) of the 1901 Act referred to circumstances in which it was "unjust or oppressive to return" the accused to another State or Territory. Kirby P. in Binge v Bennett, at 584 and in Lewis v Wilson (1987) 90 FLR 251 (NSWCA), at 255, thought that the use of this word was significant, since "return" has a different connotation than "extradition". By contrast, s.34(2) of the Act uses "surrender", a word which is associated with extradition of an accused person to another country.
This is not to deny the special position of New Zealand in relation to the extradition of alleged offenders. Furthermore, it is clearly appropriate that weight should be given to the legislative intent to establish a regime bearing "a very close similarity" to that in force within Australia prior to the Service and Execution of Process Act 1992. The intention reflects a legislative judgment that is based on
"the propinquity of New Zealand and the similarities between the laws and legal system of that country and those in Australian jurisdictions" (Narain v DPP, at 419).
Despite the similarities between the two legal systems and the undoubted duty of the New Zealand courts to ensure that an accused person receives a fair trial, s.34(2) of the 1988 Act, in terms, contemplates that the fact that a lengthy period has elapsed since the alleged offence may make it unjust, as well as oppressive, to surrender the accused to New Zealand. It may be that only in an unusual case would the forensic disadvantages to the accused occasioned by the lapse of a "lengthy period" since the alleged offences be significant in determining whether the accused would suffer injustice or oppression in being returned to New Zealand. Nonetheless, the legislation, in my view, contemplates that, depending on the circumstances, this may be the case.
The authorities support a number of propositions in relation to the construction of s.34(2) of the Act:
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.)
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.
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).
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.
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.
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.
Is there Injustice or Oppression?
In Perry v Lean, at 517, Jacobs J. remarked that the prospect of extraditing a person from South Australia to Victoria, after 23 years, gave rise to "very great anxiety", although ultimately in that case the majority ordered that the accused person should be returned to Victoria to face trial on a charge of murder. It is equally a source of considerable anxiety that, by reason of the lapse of at least 17 years, an alleged offender might not be surrendered to New Zealand to face extremely serious charges of sexual abuse of young family members.
In this connection, the only warrant that has been indorsed in Australia is that founded in an information alleging that the first respondent had sexual intercourse with L, then a girl under the age of 12. No warrants have been issued in respect of the other offences alleged to have been committed by the first respondent. However, the application to indorse the New Zealand warrants was supported by a police statement, which referred to the circumstances of the other alleged offences. It is clear that, if the first respondent is surrendered to New Zealand, he will be charged with the other offences. Section 34(2)(c) of the Act refers to a lengthy period having elapsed since the "offence was...allegedly committed". This is a reference to "the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued": s.34(2)(a).
The case was argued before me on the basis that it is appropriate, in assessing whether it would be unjust or oppressive to surrender the first respondent to New Zealand, to take into account all the offences alleged to have been committed by the first respondent against L. and S. over the period 1972 to 1978. Mr Jeffreys did not suggest, for example, that in
considering the gravity of the offences alleged to have been committed by the first respondent, attention should be confined to the offence referred to in the New Zealand warrant, which was the subject of the specific application for indorsement. For his part, Mr Gageler did not suggest that, because the indorsed warrant referred only to offences allegedly occurring between January 1973 and January 1974, the question of injustice should be determined without regard to the absence of records of interviews relating to offences that allegedly occurred in 1976. Neither Mr Jeffreys nor Mr Gageler addressed attention as to why it was permissible to take account of all of the alleged offences. It may be that the various alleged offences can be described as "offence[s] in relation to which [the] indorsed New Zealand warrant in relation to the [first respondent] was issued". Alternatively, the allegations may simply form part of all the circumstances that need to be taken into account in deciding whether the first respondent has established that, by reason of the lapse of a lengthy period, it would be unjust or oppressive to surrender him to New Zealand. I am content to deal with the case on the basis adopted by the parties, without resolving this question.
Even if attention were confined to the allegation that the first respondent, between January 1973 and January 1974, had sexual intercourse with L., then aged under 12, the case would involve an extremely serious offence. If true, the offence was committed against a young girl living in the same household as the first respondent and to whom he acted as a father. The gravity of the
offence is shown by the fact that the maximum penalty under New Zealand law is 14 years' imprisonment. When the other allegations are taken into account, it is even clearer that what is alleged (but, of course, not yet proved) is a most serious series of abuses by a foster father of his position of trust and responsibility. The conduct is alleged to have taken place over a long period and includes not only sexual intercourse with the two girls, but the rape of S. There is clearly an interest, both within the Australian and New Zealand communities, in ensuring that a person charged with such serious offences stands trial: Perry v Lean, at 530, per Mohr J.
It is the extraordinary length of time that has elapsed since the alleged offences, and the fact that the first respondent had lived undisturbed in this country for over a decade before being arrested, that makes this case most unusual and particularly difficult. I do not think it can be said that the first respondent bears responsibility for any significant portion of the delay of from 16 to 22 years in instituting proceedings. This is not a case of an accused person having fled the jurisdiction in which the offences are said to have occurred, or having concealed his or her identity. It is true that the statements of L. and Ms R. allege that the first respondent coached L. to tell an untrue story to the police in May 1976. But this is said to have occurred over 18 years before the New Zealand warrant was obtained. I do not minimise the impact such a threat could have had on a girl aged 14, as L. was in 1976. But by early 1978, both L. and S. had left the first respondent's
household and, at least within a short time, were apparently living with their natural father. By January 1980 L. had attained the age of 18 and presumably was no longer subject to action by the Department of Child Welfare. There was no evidence that S, who turned 18 in February 1983, had been subjected to similar threats by the first respondent. But even if she had been, no evidence has been adduced to show that the threats influenced her not to complain to anyone about the first respondent's actions.
No complaint had been made to the authorities about these events by December 1983, when the first respondent left New Zealand to take up residence in Australia. By this time S. and L. were aged 18 and 21, respectively, and had had very little, if any contact with the first respondent since about early 1978 (when the last of the offences against S. is alleged to have occurred). Of course, on New Zealand's case, Ms R. had known that the first respondent had had sexual relations with L. since 1976 and had separated from him in 1977. As I have previously indicated, it was not until October 1992, about 20 years after the events referred to in the indorsed warrant and 14 years after the last of the alleged offences, that the complaints were made.
The point of this is not to deny that victims of sexual abuse often find it extremely difficult, or perhaps impossible, to complain about the offences to which they have been subjected, even after the passage of many years. Particularly is this so where the victims are children; even more so when the abuse has
continued over a lengthy period. There is a very considerable literature dealing with the under-reporting of child sexual abuse cases and the difficulty of making accurate estimates of rates of abuse. See, for example, J.M. Leventhal, "Epidemiology of Child Sexual Abuse" in R.K. Oates (ed), Understanding and Managing Child Sexual Abuse (1990), 18-41; H.R. Winefield and S.N. Castell-McGregor, "Child Sexual Abuse Cases: Facilitating Their Detection and Reporting By General Practitioners", (1987) 23 Aust. J. Soc. Issues 27. (For a recent examination of the effect of the effect of mandatory reporting requirements on levels of reporting, see the Community Law Reform Committee of the Australian Capital Territory, Mandatory Reporting of Child Abuse (Report No.7, 1993).) The important point for the purposes of this case is that nothing the first respondent did after about 1977 or early 1978 could be regarded as contributing to the delay of at least 16 years in instituting a prosecution against him.
During that period, the first respondent left New Zealand and took up residence in Australia. Since December 1983, he has lived with his present wife in Australia. For all but one year of that period, he and his wife have lived at their present home in a suburb of Sydney. They now have two children, both born in Australia, who have no ties with New Zealand. The first respondent continues to conduct the same business he purchased in 1983, before moving to Australia. Until the first respondent was arrested on 19 August 1994, nearly 11 years after he took up residence in Australia, he had no inkling that criminal proceedings against him were contemplated.
In my view, the first respondent would experience very considerable hardship if he were now surrendered to New Zealand, to face charges arising out of events that occurred the best part of two decades ago. Clearly, he would suffer very great domestic upheaval by being required to leave his established home and travel to New Zealand in order to attend the depositions hearing and the trial. He would need to instruct legal representatives in New Zealand to handle his defence and to provide those representatives with the assistance necessary to prepare for both hearings. It is unlikely that the trial would be short.
I appreciate that, in view of Sergeant Joseph's attitude towards bail, it is now unlikely that the first respondent would be remanded in custody for the period pending the trial, although that prospect cannot be entirely ruled out. But the very heavy demands of preparing for and participating in the depositions hearing and the trial will necessarily constitute a substantial disruption to the first respondent's settled domestic life. Given the likelihood of the first respondent obtaining bail in New Zealand and the priority given to custodial cases, I would infer that his trial is unlikely to take place until well into 1996.
In addition, it is necessary to take into account the obvious stress and anxiety associated with the defence of criminal proceedings. While anxiety and stress are associated with virtually all serious criminal proceedings, there is likely to be a very much greater impact upon a person who is forced to deal
with allegations arising out of matters said to have occurred from 17 to 23 years ago. After living undisturbed under his own name and with his family for over a decade in Australia, the first respondent was entitled to feel that degree of security the cases have said is important, in considering whether it would be oppressive to surrender an accused person: Carmady v Hinton, at 417.
In White v Cassidy, Green C.J. held that it would be unjust or oppressive to return an accused person from Tasmania to New South Wales to face a charge of obtaining a cheque by false pretences on facts alleged to have occurred some eight years earlier. In the meantime, the accused had served a prison sentence on another matter and, after his release, had returned to his family in Tasmania and had established himself in the community. Green C.J. took into account a number of factors, including the detrimental effect of the proceedings on the accused's family. His Honour did not regard prejudice to the accused's wife and children as a relevant fact in itself, since "the injustice of oppression must relate to the respondent himself". But the effect on the respondent of the prejudice to his family was a material factor in establishing oppression. Each case must of course be assessed in reference to its own circumstances and the alleged offences in this case are more serious than those alleged in White v Cassidy. However, I regard this case as involving greater hardship to the first respondent, since he and his family have been established in Australia for over a decade and he has led what appears to have been an exemplary life in this country.
In my opinion, the financial impact upon the first respondent of his surrender to New Zealand also points to the conclusion that he would suffer oppression if he were to be surrendered. It is true that the impact will be ameliorated to some extent if bail is granted, although the first respondent would still need to comply with any conditions imposed by the New Zealand court (at present, he is required to report to a police station near his home three times per week). I accept the evidence that the first respondent's business has been affected by the recession and that, despite the first respondent's full-time endeavours, he derives only modest returns from the business. Mr Gageler has pointed to this fact as minimising the hardship likely to be sustained by the first respondent. But the business is required to service substantial loan and leasing commitments and the first respondent's capacity to continue to service those commitments would clearly be jeopardised if he were absent for significant periods. During the first respondent's previous absences from the business, by reason of injury or illness, insurance payments provided for continuity of income. This support would not be available during the first respondent's absences in New Zealand. It is possible that the business could be sold, but I accept that the price would be depressed by current market conditions. The financial burden will be increased by the first respondent's need to finance travel to and from New Zealand to provide instructions to legal representatives and attend hearings.
Taking all these circumstances into account, it seems to me that, because of the lengthy period that has elapsed since the offences were allegedly committed by the first respondent, it would be oppressive to order his surrender to New Zealand.
In my view, it is also appropriate to consider the effect of the delays in instituting the prosecution on the ability of the first respondent to prepare his defence. I have found that the likelihood is that the record of the 1976 interview between L. and the police officer was destroyed or lost by about 1983. Had the prosecution been instituted before the first respondent left New Zealand in that year, the record of interview would probably still have been available. A brief account of the interview is contained in the social worker's report. But a more detailed record would be of considerable assistance to the first respondent's representatives in preparing for the cross-examination at the trial. The social worker has no independent recollection of the relevant events and the police officer cannot be found. It is also likely that preparation for the trial would be materially assisted by information as to what L. communicated to the social worker. Had the prosecution been instituted reasonably soon after the alleged events, considerably more detailed information is likely to have been available to the legal representatives of the first respondent for the purposes of preparing for the trial.
Although Mr Jeffreys did not pursue the point in depth, in my view it is also significant that there is no documentary record of what Ms R. told the police and the social worker in May 1976. Given her present account of her knowledge of the first
respondent's conduct at the time, the details of what she communicated to the police officer and social worker could be of considerable importance to the defence, particularly for the purpose of preparing Ms R.'s cross-examination. Had the prosecution been brought before the first respondent left New Zealand to live in Australia, I think it probable that at least some documentary record of the communications would have been available, although not necessarily a verbatim account. At the least, had long delays not occurred, the police officer and social worker could have been expected to have recalled the substance of the critical events.
I do not suggest that these factors by themselves would be sufficient to cause a New Zealand judge or, for that matter an Australian judge, to stay the first respondent's trial as an abuse of process. The rationale for staying a criminal trial was stated by Gaudron J. in Jago v District Court, at 75:
"When, in the words of Wilson J. in Barton (1980) 147 CLR 75, there is 'a fundamental defect which goes to the root of [a criminal] trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences', an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt or innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands."
It is no easy task to demonstrate that there is a fundamental defect going to the root of the trial of such a nature that the trial judge can do nothing to relieve against the unfair consequences: Jago, at 34, per Mason C.J.; The Queen v Glennon (1992) 173 CLR 592, at 599, per Mason C.J. and Toohey J. In general, the judge's power to control procedure and to give "forthright directions to the jury" is thought sufficient "to eliminate or virtually eliminate unfairness": Jago, at 49, per Brennan J. It was considerations of this kind that led the New South Wales Court of Criminal Appeal to uphold the trial judge's refusal to grant a permanent stay of a prosecution relating to multiple sexual offences against children in a children's home some 30 years earlier. While there were difficulties facing the accused, because the lapse of time had made witnesses unavailable, the court took the view that the trial judge could give appropriate directions to the jury, thereby avoiding irremediable unfairness to the accused: Regina v VPH, unreported, NSW CCA, 4 March 1994.
In the present case, it would seem that the New Zealand courts have powers similar to those vested in the Australian courts to stay proceedings, or to adopt appropriate procedural steps in order to prevent irremediable unfairness: Moevao v Department of Labour [1980] 1 NZLR 464 (NZCA). I cannot say what the outcome would be of any application to stay the trial permanently in New Zealand, although it might be expected that, if the Australian approach were adopted, it would be difficult to obtain a permanent stay. It is appropriate to assume, however, that the
New Zealand trial court would give directions designed to minimise and, to the extent possible, to eliminate unfairness to the first respondent arising from the loss of evidence by reason of the lapse of time.
Nonetheless, I do not think that the test of whether injustice would be caused by the delay in instituting proceedings is necessarily determined by asking whether a New Zealand court would grant a permanent stay by reason of unfairness stemming from the same delay. There may be circumstances in which the delay might result in the surrender of the person being unjust, even though those circumstances might not prompt a New Zealand (or Australian) court to grant a permanent stay. In Binge v Bennett it was held that evidence could be adduced, on an application to extradite an accused person to Queensland, to show that he would not have a fair trial in that State because of the exclusion of Aboriginal people from jury lists. There was no suggestion that the Queensland courts would have granted a permanent stay of the prosecution. In Clear v Holyoak, the Queensland court ordered the extradition of an accused person to New South Wales on charges of sexual abuse of children over twenty years earlier. However, the court imposed a condition that the New South Wales authorities make available legal aid to the accused for the committal proceedings, having regard to the age and complex nature of the charges. This condition was imposed despite the fact that New South Wales residents could not obtain legal aid for committal proceedings, save in exceptional circumstances. The Queensland court appeared to take the view
that to deny the accused legal aid for committal proceedings would result in the extradition being oppressive or unjust, even though it was not suggested that a New South Wales court would grant a permanent stay of the prosecution on this ground.
In my view the difficulties facing the first respondent in preparing for a trial, by reason of the delay in instituting proceedings, constitute an additional factor that makes it oppressive to order his surrender to New Zealand. These difficulties may not be enough, in themselves, to constitute injustice for the purposes of s.34(2) of the 1988 Act, bearing in mind the powers of the New Zealand courts to avoid, or at least limit, unfairness in the trial of an accused person. But, as the authorities acknowledge, there is room for overlap between the concepts of injustice and oppression; and the question is ultimately whether the whole of the circumstances render it unjust or oppressive to surrender the first respondent to New Zealand. The difficulties facing the first respondent in preparing for trial should be considered, together with the other factors to which I have referred, in determining that question.
Conclusion
As I have said, this is a difficult case. The very great delay in bringing the charges against the first respondent and, more particularly, the consequences of that delay, make this case extraordinary. I have reached the conclusion that, despite the gravity of the charges against the first respondent, because of
the lengthy period that has elapsed since the offences were allegedly committed by the first respondent, it would be oppressive to require his surrender to New Zealand to face those charges.
In my opinion the learned magistrate's order should be confirmed. The applicant should pay the first respondent's costs.
I certify that this and the preceding 44 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated:26 May, 1995
Heard:8 May, 1995
Place: Sydney
Decision:26 May, 1995
Appearances: Mr S. Gageler, instructed by the Commonwealth Director of Public Prosecutions, appeared for the applicant.
Mr C. Jeffreys of Jeffreys & Associates appeared for the first respondent.
I.V. Knight, Crown Solicitor, entered a submitting appearance on behalf of the second respondent.
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