Re an Application by New Zealand

[1998] QSC 224

IN THE SUPREME COURT

OF QUEENSLAND

No 8873 of 1998

Brisbane

[Re an application by New Zealand]

Before the Hon. Justice Atkinson

IN THE MATTER of the Extradition Act 1988 (Commonwealth)

- and -

IN THE MATTER of an application by New Zealand to review an Order of Mr Kilner SM made in the Magistrates Court at Brisbane.

CATCHWORDS:     EXTRADITION - New Zealand - lengthy period since alleged offences - sexual offences against child - whether extradition unjust, oppressive or too severe a punishment.

Counsel:D Campbell for the applicant

D Kent for the respondent

Solicitors:Commonwealth Department of Public Prosecutions for the applicant

Legal Aid Queensland for the respondent

Hearing Date:              14 October 1998

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 23 October 1998

1. The applicant, New Zealand, seeks an order pursuant to s.35(2)(b) of the Extradition Act 1988 (Cth) quashing an order made by the magistrate, Mr Kilner SM on 14 September 1998. The order of the magistrate was to release Mr Bannister, who had been arrested under an endorsed New Zealand warrant, from custody.

   The Charges

2. The background to this application is that a warrant for Mr Bannister’s arrest was issued in New Zealand on 20 February 1998 by his Honour Judge Kerr of the New Zealand District Court in Auckland.  The charges against Mr Bannister are:

   1.Two counts of raping a female contrary to s.128 under the Crimes Act 1961 (NZ) for which the maximum term of imprisonment is 14 years; and

   2.Two counts of indecent assault on a girl aged 12-16 years under s.134(2a) of the Crimes Act 1961 (NZ) for which the maximum term of imprisonment is 7 years.

3. There are said to be two police witnesses and nine civilian witnesses.  The summary of facts which were filed in support of the extradition order show that the offences are said to have occurred between 1975 and 1976.

4. It is alleged that between 1 January 1975 and March 1976 Mr Bannister committed several indecent assaults and rapes on the complainant who lived in the house next door.  The counts involve many acts, set out in great detail in the statement of facts, which show an older man using a 12 year old girl for his sexual pleasure.  A number of allegations, for example, relate to his having oral sex with her when he ejaculated into her mouth holding her head tightly so that she could not pull away.

5. The rapes are alleged to have occurred at the warehouse where he worked and later at his home.  After July or August 1975 the complainant went to live with Mr Bannister, his wife and their 8 year old son when her mother had abandoned her.  By this time he was very much in loco parentis towards her.  Around mid-March 1976 the complainant’s father took her from the Bannisters’ home.

6. It appears from an affidavit by Michael Cartwright a detective constable from New Zealand, that the alleged offences against the complainant were not reported to police until 20 November 1995 when she attended at a Brisbane Police Station and made a full statement to a Senior Constable in the Child Abuse Investigation Unit.  In spite of the time delay since the offences occurred, a police officer in New Zealand who was assigned to investigate the allegations contacted most of the witnesses and obtained statements from them.  It appears that contact was made with Mr Bannister on 15 July 1997 and that that was the first time that he was aware of any investigation into allegations of child abuse made by the complainant.  No explanation is offered for the delay in the reporting of the incidents and there is no suggestion made that Mr Bannister was in any way responsible for the delay.  However it is not unusual given that the complainant was 12 years of age at the time of the offences and the alleged perpetrator was the adult responsible for her welfare that she would not report the alleged offences for many years: see the discussion in Re Venkataya (1995) 80 A Crim R 574 at 590; Re Brackenridge (unreported, Supreme Court of Queensland, Motion No 5709 of 1998, 5 August 1998). Mr Bannister gave no explanation to police for his actions and refused to talk to police.

   Extradition

7. Pursuant to s.28(a) of the Extradition Act, a Queensland magistrate endorsed a New Zealand warrant on an application by New Zealand. Mr Bannister was arrested on the endorsed New Zealand warrant on 1 September 1998 and remanded in custody under s.32(3) of the Extradition Act. A request was then made on behalf of New Zealand to a magistrate to issue warrants ordering Bannister’s surrender to New Zealand pursuant to s.34(1)(c) of the Extradition Act and ordering him to be committed to prison under s.34(1)(d) of the Extradition Act.  This request was heard before Mr Kilner SM on 14 September 1998.

8. Under s.34(2) of the Extradition Act, a magistrate must order the person to be released if any one of the circumstances therein exist.  It is common ground that the magistrate was satisfied by Mr Bannister that, because a lengthy delay has elapsed since the offences were allegedly committed, it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.  Once the magistrate makes such a finding then the magistrate has no discretion and must order the person to be released.

9. New Zealand now seeks a review of that order pursuant to s.35(1)(b) of the Extradition Act. The orders the Court may make are set out in s.35(2) of the Extradition Act.

10. The effect of the s.35(6) of the Extradition Act is that the Court reviews the order by way of rehearing and may have regard to evidence in addition to or in substitution of the evidence that was before the magistrate. Section 34(4) provides that a person is not entitled to adduce evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any endorsed New Zealand warrant was issued. The onus of proof under s.34(2) lies with the accused: Fulcher v. Hilt (1985) 79 FLR 353 at 361; Re Venkataya (supra) at 585. It is common ground that he must prove on the balance of probabilities that for one of the reasons stated in s.34(2) or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.

11. The application of the Extradition Act to such a situation has been conveniently set out by Sackville J in Re Venkataya (supra).  This analysis was adopted by Moynihan J of this Court in Re Brackenridge (supra).

12. It is accepted in this case that a lengthy delay has elapsed since the alleged offences were committed and the considerations requiring attention are whether the court is satisfied by Mr Bannister that as a result it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.

13. Extradition to New Zealand is dealt with by Part III of the Extradition Act whereas extradition to all other countries is dealt with in Part II.  The extradition regime and the Attorney-General’s second reading speech suggest an intention to assimilate the principles governing extradition to New Zealand generally to those then governing extradition within Australia.   As Kirby P observed in Bates v.  McDonald (1985) 2 NSWLR 89 at 93:

    “This separate and special treatment is not surprising.  Quite apart from the reasons of geography and history, it is inevitable that each country has a significant number of the other’s nationals caught up in various stages of their respective criminal justice systems.”

    However, 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 (Moevao v.  Department of Labour [1980] 1 NZLR 464), s.34(2) of the Extradition 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.  However as Sackville J noted in Venkataya (supra) at 587, 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 contemplates that, depending on the circumstances, this may be the case.
    Would surrender to New Zealand be unjust, oppressive or too severe a punishment?

14. As Olson J observed in Perry v. Lean (1985) 39 SASR 515 at 537, the term “unjust” relates to the risk of prejudice to the accused in the conduct of the proposed trial. The term “oppressive” relates more to the oppression or hardship to the accused resulting from the change in his circumstances in the period between the alleged offences and the extradition proceedings. If it is unjust or oppressive then it is likely to be too severe a punishment. Although each describes a separate concept, there is some degree of overlap between them.

15. In determining whether surrender to New Zealand because of delay would be unjust, the court must consider whether the accused has shown that he is prejudiced in his defence by the delay.  None of the material filed by Mr Bannister suggests that this is so.  He has not suggested that witnesses are unavailable or that he would have any difficulty in giving instructions.  Mere delay without evidence that it has caused injustice is not enough: White v. Cassidy (1979) 40 FLR 249 at 253. As against this, the New Zealand police have eleven witnesses and have provided a very detailed summary of facts.

16. The question of whether the delay is oppressive is determined by examining the personal circumstances of the accused.  It is a question of fact whether the financial hardship, domestic upheaval and emotional distress to be suffered by the accused would make the extradition oppressive.  The gravity of the offences charged is a relevant factor to weigh in the balance in determination of oppression.  There is no doubt that the charges of rape and indecent assault on a girl of 12 years of age are serious.  The factual circumstances relied on by the police amply demonstrate the gravity of the situation.

17. To be weighed against this are the personal circumstances of the accused.  Mr Bannister was born in Christchurch in New Zealand on 18 November 1948 and is now 49 years old.  He grew up in New Zealand and completed the equivalent of Year 12 and then completed an apprenticeship as a fitter and turner.  He worked as a storeman until moving to Australian in about 1969 when he was 21 years of age.  When he left New Zealand he was living with a woman who later became his first wife.  He lived in Australia until approximately 1974 working as a construction worker and then as a storeman.  As his first wife had become homesick they returned to New Zealand in 1974 and he was again engaged in full time employment.  He does not give any details of the breakup of his first marriage  or the nature of his employment in New Zealand.

18. His second wife says that she met him at the beginning of 1988 and they started going out together in about October 1988 when she was 20 years of age.  At this time he was almost 40.  They came to Australia in March 1989 and commenced living together and were married on 5 December 1991.  When they arrived in Australia they stayed with Mr Bannister’s brother and after three months moved into a place of their own.

19. They have a daughter who was born on 23 September 1989 and is 8 years old and a son who was born on 10 November 1990 and is 7 years old.  Both children attend a local state primary school.  Mr Bannister says that when he came to Australia he worked building houses for a couple of years, then worked as an employee for his brother-in-law as a brick paver and later ultimately became self-employed as a brick paver over a four year period.  For the past four years he has done irregular work unloading trawlers but says on average that he would work 20-30 hours per week.  Mrs Bannister says that he cooks and cleans the house and is an excellent “house husband”.

20. He and his children are heavily involved in local cultural and sporting activities.  He obtained Australian citizenship so his children would be born as Australians although his wife has retained her New Zealand citizenship.  The affidavit material shows particular concern about the effect of extradition on the children of his second marriage.  Mrs Bannister says: “Our children believe that only bad people go to jail.  I fear they will not comprehend what is happening if Bill is extradited. [Our son] idealises his father.”  His children will suffer by his extradition but not to any greater extent than children of any person facing similar charges.

21. He and his wife are currently renting a house and he has a brother and sister and brother-in-law and sister-in-law in Australia.  They live close to them and see them regularly.  Since 1995 he has been the president of the  Inter-Club Social Darts and this year he is president of the Kawana Junior Rugby League Club.  He is heavily involved in coaching and organising for the club.  No doubt these activities have provided him with pleasure as well as the satisfaction of taking a responsible position.

22. He has continued to reside at the same address at which he resided when he was first contacted by the police approximately 18 months ago concerning the current charges.

23. He has never used a false name or sought to evade authorities concerning these charges. He does however have a short criminal history. On 3 February 1995 he was dealt with in the Maroochydore Magistrates Court for producing a dangerous drug between 1 October 1994 and 3 February 1995. No conviction was recorded and he was fined $600 pursuant to s.12 of the Penalties and Sentences Act.

24. Unlike the accused in Venkataya, it cannot be said therefore that Mr Bannister has led an exemplary life in Australia.  His work is in the fishing industry and is casual.  There appears to be no suggestion that similar work opportunities would not be open to him in New Zealand.  He owns no property in Australia. The hardship to the accused is not so great as to amount to oppression.  Given the seriousness of the charges, his extradition to New Zealand cannot be said to be too severe a punishment.

25. In all of the circumstances, I am not of the view that it would be unjust, oppressive or too severe a punishment to surrender Mr Bannister to New Zealand.  I therefore quash the order of the magistrate and direct a magistrate to order, by warrant, that William Tuhuru David Bannister be surrendered to New Zealand.