Newman v New Zealand

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FEDERAL COURT OF AUSTRALIA

Newman v New Zealand [2012] FCAFC 133

Citation: Newman v New Zealand [2012] FCAFC 133
Appeal from: Newman v New Zealand [2011] QSC 257
Parties: ALLAN REX NEWMAN v NEW ZEALAND
File number: QUD 250 of 2011
Judges: SIOPIS, GREENWOOD AND LOGAN JJ
Date of judgment: 13 September 2012
Catchwords: EXTRADITION – New Zealand – backing of warrants procedure – whether unjust or oppressive to extradite – whether differences in law as between Australia and New Zealand in respect of permissibility of representative charges amount to unfairness – where some of charges specified in warrant of a representative character – Extradition Act 1988 (Cth), Pt III, s 34(2)
Legislation: Extradition Act 1988 (Cth) ss 7, 11, 12, 16, 22, 28, 29, 33A, 34, 35, 36, 37, 38, 42
Service and Execution of Process Act 1901 (Cth)
Criminal Procedure Act 2011 (NZ) s 20
Extradition Act 1999 (NZ) s 64
Extradition Regulations 1998 (Cth)
Extradition (Commonwealth Countries) Regulations 1998
Criminal Code 1899 (Qld) s 229B
Cases cited: Bannister v New Zealand (1999) 86 FCR 417 followed
Binge v Bennett (1988) 13 NSWLR 578 considered
Foster v Minister for Customs and Justice (2000) 200 CLR 442 followed
Johnson v Miller (1937) 59 CLR 467 applied
KBT v The Queen (1997) 191 CLR 417 applied
Newman v New Zealand (2011) 282 ALR 593 cited
New Zealand v Johnston (2011) 274 ALR 509 followed
New Zealand v Moloney (2006) 154 FCR 250 followed
New Zealand v Venkataya (1995) 57 FCR 151 considered
R v Accused [1993] 1 NZLR 385 considered
R v Qui [2008] 1 NZLR 1 considered
S v The Queen (1989) 168 CLR 266 applied
Date of hearing: 5 March 2012
Date of final written submissions of the Appellant: 23 August 2012
Date of final written submissions of the Respondent: 24 August 2012
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 62
Counsel for the Appellant: Mr J Hunter SC with Mr MW Harrison
Solicitor for the Appellant: Blanch Towers Lawyers
Counsel for the Respondent: Mr D Kent
Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 250 of 2011
ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND
BETWEEN:

ALLAN REX NEWMAN
Appellant
AND:

NEW ZEALAND
Respondent

JUDGES:

SIOPIS, GREENWOOD AND LOGAN JJ

DATE OF ORDER:

13 SEPTEMBER 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The order made by the Supreme Court of Queensland on 24 August 2011 dismissing the appellant’s application under s 35 of the Extradition Act 1988 (Cth) for the review of the warrant of 14 June 2011 whereby the Magistrates Court at Brisbane, Queensland ordered that the appellant be surrendered to New Zealand (the surrender warrant) is set aside.

3.In lieu thereof, it is ordered that the surrender warrant be quashed and that the matter be remitted to the Queensland Magistrates Court with a direction, pursuant to s 35(2)(b) of the Extradition Act 1988 (Cth),…

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Details
Case
[2012] FCAFC 133
Decision Date

CaseChat Overview and Summary

In the case of Newman v New Zealand, the appellant, Mr Newman, challenged his extradition to New Zealand to face charges of sexual offences against minors, which allegedly occurred many years ago. The appeal was heard in the Federal Court of Australia, where the court was required to determine whether it would be unjust or oppressive to extradite Mr Newman, considering the significant delay in bringing the charges and other factors such as his age, health, and lack of ties to New Zealand. The central legal issue was whether the differences in the law between Australia and New Zealand concerning the permissibility of representative charges amounted to unfairness, and if so, whether it would be unjust or oppressive to extradite Mr Newman under these circumstances.

The court considered the arguments presented by Mr Newman, including the lengthy delay in bringing charges, his advanced age, and the potential prejudice caused by the passage of time, such as the loss of witnesses and deterioration of memory. However, the court found that these factors did not take the case outside the precedent set by the Full Court in New Zealand v Johnston, which held that mere delay is not a reason for refusing extradition in cases involving the alleged sexual assault of children, unless there is demonstrated actual prejudice. The court also noted that the primary judge had taken into account all of these circumstances in his decision, and therefore, the appeal did not succeed on these grounds.

The court then turned to the issue of representative charges. It found that some of the charges specified in the warrant were of a representative character, which is not permissible under New Zealand law but is permitted under Australian law. The court concluded that this difference in the law between the two countries did not amount to unfairness, as the Extradition Act 1988 (Cth) does not prohibit the surrender of a person on the basis of representative charges. The court held that it was not unjust or oppressive to extradite Mr Newman based on the legal differences concerning representative charges.

The court allowed the appeal, set aside the order made by the Supreme Court of Queensland dismissing Mr Newman's application for the review of the extradition warrant, and quashed the surrender warrant. The matter was remitted to the Queensland Magistrates Court with a direction to order the release of Mr Newman. The respondent was ordered to pay the appellant's costs of and incidental to the appeal, with costs and in the courts below being reserved with liberty to apply.

Orders

Orders of the court

1. The appeal is allowed.

2. The order made by the Supreme Court of Queensland on 24 August 2011 dismissing the appellant’s application under s 35 of the Extradition Act 1988 (Cth) for the review of the warrant of 14 June 2011 whereby the Magistrates Court at Brisbane, Queensland ordered that the appellant be surrendered to New Zealand (the surrender warrant) is set aside.

3. In lieu thereof, it is ordered that the surrender warrant be quashed and that the matter be remitted to the Queensland Magistrates Court with a direction, pursuant to s 35(2)(b) of the Extradition Act 1988 (Cth), that a magistrate order the release of the appellant.

4. The respondent pay the appellant’s costs of and incidental to the appeal with costs and in the courts below being reserved with liberty to apply. As that liberty to apply:

(a) the appellant is to make such application, if any, in writing together with an outline of not more than two pages and file and serve the same on the respondent by not later than 17 September 2012;

(b) the respondent is to file and serve any response and related outline not later than 19 September 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The two grounds are interrelated in the sense that each is said to provide a basis as to why it would be unjust or oppressive for Mr Newman to be surrendered to New Zealand. Nonetheless, it is convenient first to consider whether, aside from the “representative charge” question, there is any merit in the appeal.AN UNREASONABLE CONCLUSION? Both before the primary judge and on the hearing of the appeal Mr Newman pointed to the following as to why it was that it was either unjust or oppressive to order his return to New Zealand:(a)Old age.(b)Delay. G first complained to police in New Zealand in December 2008; her sister, R in February 2009. This was, respectively, 47 years and 33 years after the last of the alleged offences. The New Zealand warrant for Mr Newman’s arrest was not issued by the District Court at Manukau in New Zealand until June 2010. By then, Mr Newman had not resided in New Zealand for over 30 years. He moved from Australia to New Zealand in 1950. His first wife died in the mid-1970’s. He moved back to Australia in 1978. He has resided here ever since, presently by himself. (c)Absence of contribution to delay. There is no suggestion that Mr Newman left New Zealand so as to avoid being earlier charged. Nor is he in any way responsible for the lag between when the complaints were made and when the arrest warrant was issued in New Zealand. That delay was not explained by New Zealand in the material before the Supreme Court.(d)Loss of a potential witness. The alleged offences occurred at the then Newman family residence and at a time when Mr Newman’s long since deceased first wife lived there. (e)Deterioration of memory by effluction of time both in relation to Mr Newman and his complainant daughters as well as any other contemporary witnesses. (f)Absence of appropriate health care for Mr Newman in New Zealand. Mr Newman has suffered from serious illness in the past but it is not contended that he is too ill to travel.(g)Absence of ties by him to New Zealand and dislocation. Mr Newman has nowhere to live in that country. His daughters, G and R live there but they are the complainants. His sole source of income is an Australian age pension. He has no savings. Neither does he own any real property other than the home in which he resides and that has had to be mortgaged in order to fund his legal expenses to date. He has lived in his present residence for the past six years. Surrender to New Zealand would entail his relocation there for an extended period, perhaps in excess of 12 months with consequential dislocation from the community where he presently lives. Each of these matters was expressly taken into account by the primary judge. In the result and after extensive quotation from pertinent authority, his Honour concluded (at [26]) that these circumstances did not take the present case “out of the reach of the clear statement” of the Full Court of this Court in New Zealand v Johnston (2011) 274 ALR 509 at [123] (Johnston), which his Honour identified as:123Cases involving the alleged sexual assault of children very often come to light many years after the assaults allegedly occurred. In such cases, mere delay will hardly ever be a reason for refusing extradition. In the absence of demonstrated actual prejudice, it should be left to the New Zealand courts to determine the effect of delay.Johnston was another case involving a challenge by an elderly man to his surrender to New Zealand in respect of alleged offences against minors committed many decades beforehand which had become the subject of latter day complaint.

Ratio Decidendi

Legal Principle Established

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