Newman v New Zealand - [2011] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Newman v New Zealand [2011] QSC 257

PARTIES:

ALLAN REX NEWMAN
(applicant)
v
NEW ZEALAND
(respondent)

FILE NO/S:

5281 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2011

JUDGE:

Martin J

ORDER:

Application dismissed.

CATCHWORDS:

EXTRADITION – BETWEEN AUSTRALIA AND NEW ZEALAND – APPEAL AND REVIEW – where in 2010 the District Court at Manukau in New Zealand issued a warrant for the arrest of the applicant in respect of 14 offences of a sexual nature alleged to have been committed between 1957 and 1975 – where in 2011 Hine DCM made an order under s 34(1) of the Extradition Act 1988 (Cth)(“the Act”) for the surrender of the applicant – where the applicant seeks a review of the orders made by Hine DCM pursuant to s 35 of the Act – where the applicant alleges that to extradite him would be unjust and oppressive by virtue of the applicant’s age, the age of the complainants, the delay in seeking the warrants after the complaints were made, the fact that a possible witness is dead, the inevitable deterioration of recollections and the unavailability of appropriate health care for the applicant

Extradition Act 1988 (Cth) s 34, s 35

New Zealand v Johnston (2011) 274 ALR 509, considered
New Zealand v Johnston (2010) 272 ALR 379, considered
New Zealand v Moloney (2006) 154 FCR 250, considered
New Zealand v Venkataya (1995) 57 FCR 151, considered

COUNSEL:

J R Hunter SC and M W C Harrison for the applicant
D Kent for the respondent

SOLICITORS:

Blanch Towers Lawyers for the applicant
Commonwealth Director of Public Prosecutions for the respondent

On 17 August 2010 a warrant for the arrest of the applicant in respect of 14 offences of a sexual nature issued from the District Court at Manukau in New Zealand.

On 14 June 2011 Hine DCM made an order under s 34(1) of the Extradition Act 1988 (Cth)(“the Act”) that the applicant be surrendered to New Zealand.

On 17 June 2011 this application was filed, under s 35 of the Act, seeking a review of the order made by Hine DCM.

The charges

It is alleged against the applicant that he committed offences of indecent assault and inducing an indecent act against his daughter (“G”) between 1957 and 1961 when she was aged between 5 and 9 years.

It is further alleged that he committed offences of the same description against his other daughter (“R”) between 1966 and 1975 when she was aged between 10 and 17 years.

G first complained to police in December 2008, some 47 years after the last alleged offence. R complained in February 2009, some 33 years after the last alleged offence.

The Extradition Act 1988

The Act has, as one of its objects, the codification of the law relating to the extradition of persons from Australia to “extradition countries”…

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.

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Details

Case: [2011] QSC 257
Decision Date: 24 August 2011

CaseChat Overview and Summary

In this case, the applicant, a man who was subject to a warrant issued by the District Court at Manukau in New Zealand in 2010 for his arrest in respect of 14 offences of a sexual nature, sought a review of the decision of Hine DCM, made under section 34(1) of the Extradition Act 1988 (Cth) (the Act) to surrender him. The applicant argued that extraditing him would be unjust and oppressive due to his age, the age of the complainants, the delay in seeking the warrants after the complaints were made, the fact that a possible witness is deceased, the inevitable deterioration of recollections, and the unavailability of appropriate health care for the applicant.

The court was required to determine whether the applicant's arguments constituted valid grounds for refusing his extradition. The legal issues before the court were whether the applicant's age, the delay in seeking the warrants, the death of a potential witness, the inevitable deterioration of recollections, and the unavailability of appropriate health care for the applicant constituted grounds for refusing his extradition.

The court found that the applicant's arguments did not constitute valid grounds for refusing his extradition. The court held that the applicant's age and the age of the complainants did not provide sufficient grounds for refusing his extradition. The court also found that the delay in seeking the warrants did not prejudice the applicant's right to a fair trial. Furthermore, the court held that the death of a potential witness did not preclude the applicant's extradition, as there were other witnesses available to testify against him. The court also found that the inevitable deterioration of recollections did not constitute a valid ground for refusing his extradition, as the applicant had not demonstrated that it would significantly impede his ability to defend himself. Finally, the court held that the unavailability of appropriate health care for the applicant did not constitute a valid ground for refusing his extradition, as New Zealand had offered to provide appropriate health care for the applicant.

The court dismissed the applicant's application for review and affirmed the decision of Hine DCM to surrender the applicant to New Zealand. The court held that the applicant's arguments did not constitute valid grounds for refusing his extradition, and that the principles of comity and reciprocity between Australia and New Zealand required his extradition.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Newman v New Zealand [2011] QSC 257
PARTIES:	ALLAN REX NEWMAN (applicant) v NEW ZEALAND (respondent)
FILE NO/S:	5281 of 2011
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2011
JUDGE:	Martin J
ORDER:	Application dismissed.
CATCHWORDS:	EXTRADITION – BETWEEN AUSTRALIA AND NEW ZEALAND – APPEAL AND REVIEW – where in 2010 the District Court at Manukau in New Zealand issued a warrant for the arrest of the applicant in respect of 14 offences of a sexual nature alleged to have been committed between 1957 and 1975 – where in 2011 Hine DCM made an order under s 34(1) of the Extradition Act 1988 (Cth)(“the Act”) for the surrender of the applicant – where the applicant seeks a review of the orders made by Hine DCM pursuant to s 35 of the Act – where the applicant alleges that to extradite him would be unjust and oppressive by virtue of the applicant’s age, the age of the complainants, the delay in seeking the warrants after the complaints were made, the fact that a possible witness is dead, the inevitable deterioration of recollections and the unavailability of appropriate health care for the applicant Extradition Act 1988 (Cth) s 34, s 35 New Zealand v Johnston (2011) 274 ALR 509, considered New Zealand v Johnston (2010) 272 ALR 379, considered New Zealand v Moloney (2006) 154 FCR 250, considered New Zealand v Venkataya (1995) 57 FCR 151, considered
COUNSEL:	J R Hunter SC and M W C Harrison for the applicant D Kent for the respondent
SOLICITORS:	Blanch Towers Lawyers for the applicant Commonwealth Director of Public Prosecutions for the respondent