Tera v New Zealand - [2024] FCA 1011

FEDERAL COURT OF AUSTRALIA
Tera v New Zealand [2024] FCA 1011

File number: QUD 575 of 2023

Judgment of: RANGIAH J

Date of judgment: 6 September 2024

Catchwords: EXTRADITION – application for review – where the magistrate ordered that the applicant be surrendered to New Zealand – where applicant charged with serious sexual offences – where offences alleged to have occurred in the 1980s – where there was delay in the investigation of the complaints – whether surrender would be unjust, oppressive or too severe a punishment – magistrate’s orders confirmed

Legislation: Extradition Act 1988 (Cth) ss 34, 34(1), 34(1)(c), 34(1)(d), 34(2), 34(2)(c), 35, 35(1)(a), 35(2)(b)(i) and 35(6)(d)

Cases cited:
Bannister v New Zealand (1999) 86 FCR 417

Heslehurst v Government of New Zealand [2000] FCA 1311

In re Arton [1896] 1 QB 108

Kenneally v New Zealand (1999) 91 FCR 292

New Zealand v Johnston (2011) 274 ALR 509; [2011] FCAFC 2

New Zealand v Moloney (2006) 154 FCR 250

New Zealand v Templeton [2017] FCA 745

New Zealand v Venkataya (1995) 57 FCR 51

Newman v New Zealand (2012) 206 FCR 1

Snedden v Republic of Croatia (2009) 178 FCR 546

Division: General Division

Registry: Queensland

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 77

Date of hearing: 3 July 2024

Counsel for the Applicant: Mr DR Wilson

Solicitor for the Applicant: MacDonald Law (Qld)

Counsel for the Respondent: Ms AC Freeman

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

ORDERS

QUD 575 of 2023

BETWEEN:
WILLIAM TERA

Applicant

AND:
NEW ZEALAND

Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

6 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The application for review be dismissed.
2.The orders made by the Magistrates Court of Queensland on 5 December 2023 under s 34(1) of the Extradition Act 1988 (Cth) be confirmed.
3.By 4.30 pm on 22 September 2024, the parties file any written submissions (not exceeding five pages) as to costs.
4.By 4.30 pm on 29 September 2024, the parties file any written submissions (not exceeding five pages) in response.
5.If any written submissions are filed in accordance with orders 3 and 4, the issue of costs will be determined on the papers.
6.If written submissions are not filed in accordance with orders 3 and 4, there will be no order as to costs.

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

REASONS FOR JUDGMENT

Background

[4]

The applicant’s submissions

[12]

The respondent’s submissions

[18]

The statutory provisions

[24]

Consideration

[26]

Conclusion

[76]

RANGIAH J:

On 5 December 2023, a magistrate of the Magistrates Court of Queensland made orders under s 34(1) of the Extradition Act 1988 (Cth) (the Act) that the applicant be surrendered to New Zealand, and pending the execution of the surrender warrant, be committed to prison.
The applicant now seeks orders pursuant to s 35(2)(b)(i) of the Act that the magistrate’s decision be quashed and that a magistrate be directed to order…

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: [2024] FCA 1011
Decision Date: 6 September 2024

CaseChat Overview and Summary

In the case of Tera v New Zealand, the applicant sought a review of the magistrate's decision to order his extradition to New Zealand, where he faced serious charges of sexual offences involving a child. The alleged offences were said to have occurred in the late 1980s, but the complaints were only made in 2016, resulting in a significant delay. The applicant argued that the delay and potential impact on his family, particularly his ill mother who required his care, made extradition unjust or oppressive.

The court was tasked with determining whether the magistrate's decision to order extradition was correct and whether the applicant's surrender would constitute unjust or oppressive punishment. This involved assessing the evidence of the impact on the applicant's family, the nature of the alleged offences, and the public interest in pursuing the criminal charges. The court had to weigh these factors against the statutory criteria for extradition under the Extradition Act 1988 (Cth).

The court found that the delay in reporting and prosecuting the alleged offences did not result from any fault by the authorities or the applicant. The court also considered the impact on the applicant's family, including the health of his mother and the potential loss of income for his wife. However, the court concluded that these factors, either individually or cumulatively, did not make extradition unjust, oppressive, or too severe a punishment. The court confirmed the magistrate's orders for extradition, emphasising the public interest in dealing with serious criminal allegations.

The court dismissed the application for review and confirmed the magistrate's orders. The court ordered that the applicant be surrendered to New Zealand and remanded in custody pending extradition. The court also directed the parties to file written submissions regarding costs, with the issue to be determined on the papers if submissions were provided within the specified timeframe.

Orders

Orders of the court

1. The application for review be dismissed.

2. The orders made by the Magistrates Court of Queensland on 5 December 2023 under s 34(1) of the Extradition Act 1988 (Cth) be confirmed.

3. By 4.30 pm on 22 September 2024, the parties file any written submissions (not exceeding five pages) as to costs.

4. By 4.30 pm on 29 September 2024, the parties file any written submissions (not exceeding five pages) in response.

5. If any written submissions are filed in accordance with orders 3 and 4, the issue of costs will be determined on the papers.

6. If written submissions are not filed in accordance with orders 3 and 4, there will be no order as to costs.

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

Background

Background to the litigation

For the reasons that follow, the application for review will be dismissed.Background On 9 February 2023, a judge of the Tokoroa District Court in New Zealand issued a warrant for the arrest of the applicant. The warrant was issued in respect of two charges of sexual violation by sexual connection and two charges of indecency with a girl under 12. The maximum penalties are 14 years’ imprisonment for the alleged sexual violation offence and 10 years’ imprisonment for the alleged indecency offence. The offences are alleged to have been committed between about 16 October 1987 and 31 July 1988. It is unnecessary to describe the allegations except to say that they involve serious allegations of a sexual nature against a child. On 18 August 2023, the warrant was indorsed by a magistrate of the Magistrates Court of the Australian Capital Territory under s 28 of the Act. On 22 August 2023, the applicant was arrested by the Australian Federal Police pursuant to the indorsed warrant and remanded in custody. On 5 December 2023, the application for extradition was heard and determined. In determining the application, the magistrate considered whether the “statutory bar to extradition” in s 34(2) of the Act applied. His Honour took into account the written and oral submissions made by the parties, affidavit evidence and relevant authorities, and found that:·While there had been a delay of approximately 29 years since the alleged offending occurred and the complainant making a complaint to New Zealand police, mere delay without any demonstrated actual prejudice was insufficient.·The nature of the alleged offending the subject of the warrant could not be said to be trivial and there was a significant public interest in allowing alleged criminal conduct to be dealt with in accordance with the processes of the criminal law.·The delay in the investigation of the complaint was not a result of any misleading conduct by New Zealand police or any fault of the applicant.·The risk of homelessness to the applicant’s wife was not made out on any of the material.·While there was a risk of the applicant and his wife losing a commercial contract, it did not mean that their family cleaning business would not be able to find other contracts or had not been seeking other contracts.·The applicant’s mother was of ill health and required dialysis and effectively 24-hour care. The magistrate was not satisfied that the applicant had established that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand. Accordingly, his Honour determined that a warrant should be issued for the extradition of the applicant, and imprisonment pending extradition, pursuant to s 34(1)(c) and (d) of the Act. The applicant now seeks review of the magistrate’s orders. The sole ground relied upon by the applicant is as follows:The decision was wrong insofar as insufficient consideration and weight was given to:i.the evidence of the severe impact on the health of the Applicant’s mother should he be unable to return to the community and continue providing around-the-clock in-home care to her resulting in any order that he be extradited to New Zealand being oppressive or too severe a punishment; and/orii.the delay in the complaint being made to police of the alleged offending and/or the delay in the prosecution of the alleged charges once the complaint was made to police; and/oriii.the very significant impact on his wife and his financial wellbeing insofar as they expect to lose their only source of income; that being a commercial cleaning contract.The applicant’s submissions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whether the factors relied upon and the evidence adduced by the applicant are considered cumulatively or individually, I am not satisfied that his surrender would be unjust or oppressive or too severe a punishment. Conclusion The application for review will be dismissed. I will order that the magistrate’s orders under s 34(1) of the Act that the applicant be surrendered to New Zealand and, pending the execution of the surrender warrant, be committed to prison, be confirmed. I will make orders for the filing of written submissions as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 575 of 2023
Judgment of:	RANGIAH J
Date of judgment:	6 September 2024
Catchwords:	EXTRADITION – application for review – where the magistrate ordered that the applicant be surrendered to New Zealand – where applicant charged with serious sexual offences – where offences alleged to have occurred in the 1980s – where there was delay in the investigation of the complaints – whether surrender would be unjust, oppressive or too severe a punishment – magistrate’s orders confirmed
Legislation:	Extradition Act 1988 (Cth) ss 34, 34(1), 34(1)(c), 34(1)(d), 34(2), 34(2)(c), 35, 35(1)(a), 35(2)(b)(i) and 35(6)(d)
Cases cited:	Bannister v New Zealand (1999) 86 FCR 417 Heslehurst v Government of New Zealand [2000] FCA 1311 In re Arton [1896] 1 QB 108 Kenneally v New Zealand (1999) 91 FCR 292 New Zealand v Johnston (2011) 274 ALR 509; [2011] FCAFC 2 New Zealand v Moloney (2006) 154 FCR 250 New Zealand v Templeton [2017] FCA 745 New Zealand v Venkataya (1995) 57 FCR 51 Newman v New Zealand (2012) 206 FCR 1 Snedden v Republic of Croatia (2009) 178 FCR 546
Division:	General Division
Registry:	Queensland
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	77
Date of hearing:	3 July 2024
Counsel for the Applicant:	Mr DR Wilson
Solicitor for the Applicant:	MacDonald Law (Qld)
Counsel for the Respondent:	Ms AC Freeman
Solicitor for the Respondent:	Commonwealth Director of Public Prosecutions

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	6 SEPTEMBER 2024

Background	[4]
The applicant’s submissions	[12]
The respondent’s submissions	[18]
The statutory provisions	[24]
Consideration	[26]
Conclusion	[76]