Bennett v District Court of New Zealand
[2021] NZHC 31
•27 January 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000108
[2021] NZHC 31
UNDER THE Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of a decision to refuse a stay of the criminal charges against the applicant
BETWEEN
PAUL JAMES BENNETT
Applicant
AND
DISTRICT COURT OF NEW ZEALAND
First Respondent
AND
ATTORNEY-GENERAL
Second Respondent
Hearing: 25 August 2020 Appearances:
S J Shamy for the Applicant
H Carrad and C Wrightson for the First Respondent (appearances excused)
F Sinclair for the Second RespondentJudgment:
27 January 2021
JUDGMENT OF GWYN J
Introduction
[1]Mr Bennett faces two tranches of charges:
(a)Charges for indecent assault and drug related offending in 2008, in the District Court; and
BENNETT v DISTRICT COURT [2021] NZHC 31 [27 January 2021]
(b)Civil Aviation Authority charges in the District Court at Christchurch in July 2020.
[2]It is those charges in relation to which Mr Bennett seeks this stay of proceeding.
[3] Mr Bennett did face a further group of charges: 62 charges for dishonesty offences, alleged to have occurred between 1997 and 2016, including a charge (jointly with Simone Wright, as she was then known), of theft of a yacht in Paihia which was then sailed to Sydney, Australia in 2015 (discussed further below). Mr Shamy advised me that Mr Bennett had obtained a discharge under s 147 of the Criminal Procedure Act 2011 of the charge relating to the yacht because he had been acquitted of that offence in Australia; he has pleaded guilty to the remainder of the dishonesty charges and was sentenced to three years’ imprisonment, but with time served.
[4] Mr Bennett is a New Zealand citizen. When he and Ms Wright arrived in Australia in 2015, he had no valid passport or visa for entering Australia. In May 2016, he was removed to New Zealand by the Australian authorities. On arrival in New Zealand he was arrested and charged.
[5] Mr Bennett applied to the District Court for a stay of proceedings on the basis that his deportation to New Zealand was a “disguised extradition”. Disguised extradition is a means by which states achieve jurisdiction over a person, without going through official extradition processes. The procedures may be lawful, but they are sometimes used abusively to circumvent an otherwise accepted ground for denying the return of an individual to the requesting state.
[6] Mr Bennett says that the way in which his removal from Australia to New Zealand came about and the way he was escorted from Sydney to Christchurch amount to an abuse of process to such a degree that continuation of the proceedings would compromise the moral integrity of the criminal justice system.
[7] By its decision of 21 August 2019 the District Court refused to order a stay and Mr Bennett now seeks to have this Court review that refusal, pursuant to the Judicial Review Procedure Act 2016.1
[8] The District Court, the first respondent, abides the decision of the Court. The second respondent, the Attorney-General, appears as contradictor.
[9] The Attorney-General had previously applied to strike out the claim, but by judgment of 16 July 2020, Doogue J declined to strike out the matter considering that it should proceed and be dealt with prior to the trial of the criminal proceedings.2
[10]Doogue J said:3
[29] … while I consider … the threshold remains very high, I find that it remains open to this Court to allow a judicial review of a pre-trial decision in the criminal context to proceed in exceptional circumstances. I consider this to be the case even where the alleged error can be challenged on appeal upon conviction … But this must be the case only in exceptional circumstances.”
[11]In her conclusion Doogue J noted that: 4
[36] The gate to applications for judicial review in the pre-trial criminal context is narrow for very good reasons, and only exceptional cases pass through it.
and
[37] … when dealing with fundamental freedoms and rights and the possibility of perpetuating injustice through a disguised extradition, an exceptional case is established.
Factual background
[12]Mr Bennett’s account of relevant events is as follows.
[13] On 17 February 2015 he was arrested by the New South Wales Police on a yacht which he and Simone Wright had sailed from New Zealand, before it made
1 R v Bennett [2019] NZDC 16311.
2 Bennett v District Court of New Zealand [2020] NZHC 1730.
3 At [29].
4 At [36] and [37].
landfall in Australia. He did not have a current New Zealand passport and was apprehended by Australian authorities as an undocumented arrival.
[14] There was an outstanding warrant for his arrest on historical Australian dishonesty charges. He appeared in the Sydney District Court and was remanded in custody.
[15] Charges concerning the stolen yacht were heard in the Sydney Magistrates Court on 11 August 2015 and Mr Bennett was acquitted on that charge on 30 October 2015.
[16] On 15 April 2016 he appeared in the Sydney District Court on the historical charges of false pretences. He was sentenced to 18 months’ imprisonment but, as a result of time served, he was eligible for immediate release.
[17] Since he was an unauthorised maritime arrival, he was detained by a Federal Immigration Officer before leaving the Court and taken into custody, to the Villawood Detention Centre, because he did not have a current Australian visa or New Zealand passport. After his detention he met with an Australian Immigration Official who told him he could voluntarily leave Australia as he was not being deported and he was provided with a Leaving Detention document. An Immigration official confirmed to him that he could leave Australia voluntarily if he bought his own ticket and signed a Request for Removal form. He was provided with a copy of that form which had been partially completed; Mr Bennett initialled the form on page 3 but left the “preferred destination” section blank. Mr Bennett says that at some unknown time the form was completed to show the preferred destination as Christchurch, New Zealand. He says that must have been done by an Australian official.
[18] Subsequently Mr Bennett was told he was to be removed from Australia. He was told this did not require a particular destination and he repeated that he wished to go to Bali or Canada.
[19] Mr Bennett recorded certain events in a memorandum of 18 April 2016. In it, he confirmed that he had been told a particular destination was not required and that he had said he wished to go to Bali or Canada. He had sufficient funds to his credit in the Villawood Trust account to buy a plane ticket from Sydney to Bali. In the same document he confirmed that the city closest to his place of birth was Auckland, not Christchurch, and that the Australian Border Force (ABF) had told him they were in discussions with the New Zealand Police about his extradition to New Zealand.
[20] On 19 April 2016, Mr Bennett completed another memorandum recording what he had discussed with the ABF, noting specifically:
(a)He would not be subject to a s 501 Migration Act deportation order. He would be subject to a removal notice under s 198. He had confirmed with ABF that, from their perspective, destination was irrelevant in a s 198 removal.
(b)Since the New Zealand Police were no longer seeking his extradition, ABF confirmed he could leave Australia voluntarily and purchase his own air ticket to his preferred destination. He advised that Bali was his first choice and Vancouver his second choice. ABF told him he would be kept in Immigration detention until he was on a plane at the airport.
[21] Mr Bennett applied for a New Zealand passport on about 20 April 2016. The passport was issued on 2 May 2016. He was not given his passport when it became available.
[22] On 9 May 2016, he filed in the Federal Court of Australia, seeking an interim injunction and/or stay of proceedings in relation to his pending removal from Australia. Also on 9 May he completed a complaint form directed to the ABF about his case, as well as formal withdrawal of consent for a voluntary removal. He was notified that an urgent hearing of his court challenge to the removal was for call on 3 June 2016.
[23] On about 10 May 2016, he was provided with an undated and unsigned Notice of Intention to Remove from Australia document, which anticipated that he would be removed from Australia on 13 May 2016.
[24] On 11 May 2016, he received confirmation from the Federal Court that his case was formally lodged and he served that confirmation on the Villawood Immigration officials.
[25] Mr Bennett was originally scheduled to fly from Sydney to Auckland on NZ102, leaving at 9:40 am on 12 May 2016. There was then a flight booked for him, under the same booking number, flight NZ547 leaving Auckland at 5:00 pm on that day and arriving in Christchurch at 6:25 pm. The onward flight was not at Mr Bennett’s request.
[26] At the request of the Christchurch Police the flights were changed to a direct flight from Sydney to Christchurch the following day.
[27] On 13 May 2016, Mr Bennett was handcuffed by ABF Officers and taken to a waiting van. He asked to speak to a lawyer of the Federal Court but says his requests were ignored. He was taken under the escort of four ABF Officers to Sydney Airport. He again repeated that he had filed a challenge to his removal from Australia. He says the response from the ABF officials was that they did not care and he was to be handed over to New Zealand Police.
[28] Mr Bennett was taken under restraint in a van to a New Zealand aircraft. He was boarded ahead of other passengers, restrained throughout the flight and kept separate from other passengers. After landing he was detained on the aircraft, unable to communicate with other passengers (he says at the request of New Zealand Police) until the other passengers had disembarked and he was then taken, still handcuffed, by the Australian officials through the air bridge and into Customs reception. He was there arrested by New Zealand Police and served with a Determination Notice under the Returning Offenders (Management and Information) Act 2015. He was finger-printed and a DNA sample taken.
Abuse of process
[29] The essence of the case advanced by Mr Bennett is that his return to New Zealand was an abuse of process, through the use of the removal procedure for the ulterior purpose of delivering him to the New Zealand Police and with the “connivance” of the New Zealand Police. This was, he says, a joint exercise between the Australian authorities and the New Zealand Police. He was sent to New Zealand with a clear motive, not to remove him from Australia, but to deliver him to the waiting New Zealand Police, with the purpose of avoiding an extradition procedure and the protections entailed in that procedure.
[30] The process constituted a disguised extradition, thus transforming a valid removal into an abuse of process.
[31] The District Court declined to award a stay of proceedings on that basis. It found there was no abuse of process on the evidence. Mr Bennett seeks to review that by way of judicial review. The main error Mr Bennett says the District Court made was focusing on whether his deportation was lawful or not. Mr Bennett accepts this his deportation was technically lawful, but says this is a situation where a “legitimate process has become contaminated with an illegitimate purpose”. Mr Bennett also pointed to specific errors he says the District Court Judge made in his analysis. I will therefore consider the law relating to when a deportation can become a disguised extradition due to an improper purpose and consider if the District Court erred in its application of that law to these facts. I note, however, that the manner in which both parties argued this case before me was much more akin to an appeal than a judicial review.
[32] Mr Bennett seeks a stay on the ground that the prosecution is an abuse of process, due to the disguised extradition. In Wilson v R, the Supreme Court held the “power of a court to grant a stay of proceedings has long been recognised as necessary to enable a court to prevent an abuse of its processes.”5 The Supreme Court held that a stay may be granted in criminal proceedings where there is state misconduct that will
5 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [39].
prejudice the fairness of the defendant’s right to trial. or undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed.6
[33] Mr Bennett argues that his case falls into the second class of case. He says that the manner of his removal from Australia to New Zealand amounts to an abuse of process to such a degree that continuation of proceedings against him would, as the District Court put it, “compromise the moral integrity of the criminal justice system”.7
[34]Deciding whether or not to grant a stay in the second class of case in Wilson
involves a balancing exercise, as the Court explained:8
the court will have to weigh the public interest in maintaining the integrity of the justice system against the public interest in having those accused of offending stand trial. In weighing those competing public interests, the court will have to consider the particular circumstances of the case.
Abuse of process: legal principles
[35] The Court of Appeal has very recently summarised the legal principles concerning abuse of process, in the particular context of disguised extradition cases, in Smith v R.9 The Court’s judgment was given after the hearing of this application. Counsel for Mr Bennett says that Smith involved a different factual matrix. First, it concerned a court-ordered deportation; here, Mr Bennett was removed pursuant to an unsigned removal notice, with details filled in by an unknown person with the basis for removal much less clear than in Smith. Second, counsel says, the involvement of the New Zealand Police was not officially sanctioned, unlike in Smith. He refers to the seizure of items without going through the mutual assistance regime, the New Zealand Police “telling” the Australian authorities that Mr Bennett must be escorted (he says in breach of both Australian and New Zealand law) and ongoing detention on the tarmac in New Zealand. I discuss those particular issues below but I do not think they go to the accuracy or relevance of the general legal principles set out by the Court of Appeal in Smith.
6 At [40].
7 R v Bennett, above n 1, at [6].
8 At [60].
9 Smith v R [2020] NZCA 499 at [40]–[55].
[36] In Smith v R, the Court of Appeal surveyed the relevant case law and set out the following general points:10
(a)The appropriate test for a “category 2” stay based on state misconduct is whether there has been an abuse of process “which amounts to an afront to the public conscience”11 or which is “so inconsistent with the purposes of criminal justice that for the Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety”.12
(b)The hallmark of category 2 abuse process is unlawful conduct by the New Zealand authorities in the foreign jurisdiction or want of good faith or a proper motive in subverting the defendant’s rights in that jurisdiction.
(c)It is not, therefore, sufficient simply for the deportation to be unlawful according to the laws of the state deporting. As the decision in Burns makes clear, what is needed is a knowing appreciation by the requesting state that deportation is unlawful, or is likely to be unlawful according to those laws. As Judge LJ stated in Burns, it is not incumbent on the requesting state to question or challenge the legality of deportation.13 We add that that observation applies with particular force where deportation is ordered by a court of competent jurisdiction
– as it was in Burns (compared with Mackeson, Mullen and Bennett where the deportation was a purely executive action by the deporting state).
(d)A stay of prosecution altogether is an extreme step and will be granted only in the clearest of cases. Likewise, the setting aside of convictions on the same grounds.
(e)The burden of proof lies on the applicant to establish misconduct and to justify the grant of a stay. The burden may shift if all relevant knowledge about the abuse resides with the prosecuting authorities.14
(f)Although the evaluation is sometimes described as a discretionary test, according to principles laid down in Taipeti v R the assessment is an evaluative rather than discretionary one.15 …
[37] Mr Bennett relies particularly on Schlieske v Minister for Immigration & Ethnic Affairs & Ors,16 a decision of the Federal Court of Australia. Mr Schlieske was a prohibited non-citizen in Australia. He was a national of West Germany and was wanted in that country for the alleged commission of various crimes. Extradition
10 Smith v R, above n 9, at [55].
11 R v Latif [1996] 1 W:R 104 (HL) at 112.
12 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37].
13 Burns v R [2002] EWCA Crim 1324 at [30].
14 Grant v R [2005]EWCA Crim 1089, [2006] QB 60 at [44]–[45].
15 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [49].
16 Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719.
proceedings had failed on two occasions. Officers of the Minister’s Department served a deportation order, arranged for a West German temporary travel permit to be issued, booked a seat on a West German airline and, purporting to exercise the power given by s 22 of the Migration Act 1958 (Cth), directed the airline to receive Mr Schlieske on board its flight.
[38]The Court said, in relation to the Migration Act 1958:17
It is not one of the purposes of the Migration Act to aid foreign powers to bring fugitives to justice. There is a distinct head of constitutional authority – namely the external affairs power – and a distinct mechanism – the extradition legislation – under which that object may be pursued.
[39]The Court went on to say:18
It may be that a government will choose to deport a fugitive to a country seeking to extradite him, and will do so in the face of the opportunity to deport to another country which is willing to receive him and to which he is willing to travel. Such a choice is not necessarily unlawful but it may, according to the circumstances of the case, give rise to an inference that the choice has been actuated by an improper purpose. In drawing that inference, the court may take into account official conduct outside that authorised by statute, for example the communication of flight arrival details. The court must be vigilant to ensure that procedures established by extradition laws to protect individual rights are respected and followed. The inconvenience which attends compliance with those procedures is a small price to pay to maintain the primacy that the liberty of the individual should have in our legal system.
[40] Mr Bennett also refers to the principal authorities on disguised extradition, including:
(a)R v Hartley19 where the defendant was not formally extradited. Instead, the New Zealand Police asked the Melbourne Police to put the defendant on the next flight to New Zealand. They did so. The Court of Appeal considered this to be a case where a stay was appropriate.
(b)R v Horseferry Road Magistrates Court, ex parte Bennett,20 where Mr Bennett was charged with dishonesty offences in England. He
17 At 729.
18 At 730.
19 R v Hartley [1978] 2 NZLR 199 (CA).
20 R v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 (HL).
entered South Africa on a false passport and a court ordered his deportation to New Zealand, his country of citizenship. There were no direct flights from South Africa to New Zealand. He was flown to New Zealand via London and was handcuffed on the plane. The English authorities had received advance notice of the planned route from the South African authorities and arrested him on arrival at Heathrow. The case was remitted for reconsideration and the House of Lords emphasised that a state should not benefit from any collusion to avoid extradition.
(c)R v Bow Street Magistrates, ex parte Mackeson,21 where the defendant was in Zimbabwe. The English authorities informed the Zimbabwe authorities and he was arrested and a deportation order made. His passport was sent to the United Kingdom and revalidated solely for one trip so he could be deported. He challenged the decision in the Zimbabwe courts but was ultimately unsuccessful and escorted back to the United Kingdom and handed over to the Police. The Court held he was subject to extradition under the guise of deportation and discharged the defendant.
Deportation versus extradition
[41] The Court of Appeal in Smith also summarised the essence of the distinction between deportation and extradition:22
(a)The essence of extradition is the making of a formal request by one state for the remission of an individual by another state.
(b)Extradition is a matter for domestic law, which by statute gives effect to various international treaties and bilateral arrangements at international law.
21 R v Bow Street Magistrates, ex parte Mackeson [1981] CR App 24.
22 Smith v R, above n 9, at [56].
(c)Extradition is governed in New Zealand law by the Extradition Act 1999.
(d)Whether to pursue extradition to New Zealand is not a decision for the authorities of the host state (here, Australia). It is dependent on request by the authorities of the trial state (here, New Zealand).
(e)The decision to pursue deportation, on the other hand, is one for the authorities of the host state.
[42] Mr Bennett also relies on a decision of the Constitutional Court of South Africa which set out an exposition of the difference between extradition and deportation. In Mohamed & Anor v The President of the Republic of South Africa and Ors the court said:23
Extradition involves basically three elements: acts of sovereignty on the part of two states; a request by one state to another state for the delivery to it of an alleged criminal; and the delivery of the person requested for the purpose of trial or sentence in the territory of the requesting state. Deportation is essentially a unilateral act of the deporting state in order to get rid of an undesired alien. The purpose of deportation is achieved when such alien leaves the deporting state’s territory; the destination of the deportee is irrelevant to the purpose of deportation. One of the important distinguishing features between extradition and deportation is therefore the purpose of the state delivery act in question.
Was there misconduct here such that the convictions are an affront to the public conscience?
[43] The applicant advances the following submissions to establish the alleged misconduct by the New Zealand authorities.
Flight arrangements
[44] Mr Bennett’s flights from Australia were changed in order to suit the New Zealand Police. He says that if the object of the removal was simply to have him leave Australia and arrive in New Zealand, the original flight to Auckland would have been retained as it was both cheaper and quicker. The New Zealand Police contacted
23 Mohamed & Anor v The President of the Republic of South Africa and Ors [2001] 3 SA 893 (CC) at [29].
the Australian authorities to say it would suit them better if Mr Bennett were flown directly to Christchurch, for the purposes of his arrest. On the basis of that request the flights were changed.
[45] Christchurch, New Zealand was inserted into the Request for Removal form that Mr Bennett had signed, by an unknown person, being someone in the Australian Immigration authorities. This was “unlikely to be coincidence” as Christchurch was the destination to which New Zealand Police wished him to be delivered.
[46] There was a further series of correspondence relied on in relation to the travel plans for Mr Bennett which, again, showed the extent of communication and cooperation between the Australian authorities and the New Zealand Police.
[47] On 29 April 2016, the New Zealand Police knew that Mr Bennett was to be flown from Sydney to Auckland and then onto Christchurch and, on 2 May 2016, asked, “Can his flight be changed as a direct into CHCH … ?”.
[48] On 3 May 2016, the New Zealand Police confirmed that a flight direct to Christchurch would be preferred.
[49]On 5 May 2016, an updated itinerary was provided to the New Zealand Police.
[50] On 11 May 2016, the New Zealand Police communicated that they “firmly believe” that Mr Bennett should be escorted on the flight. The Australian authorities replied that Mr Bennett will be escorted and referred to “our processes”.
[51] Mr Bennett was escorted, handcuffed for the duration of the flight and until he was handed over to New Zealand Police in Christchurch, despite the fact he had no previous convictions for violence or escaping from custody. There was no evidence that the pilot of the aircraft requested Mr Bennett’s restraint under the Aviation Crimes Act 1972.
Possibility of extradition
[52] Mr Shamy points to exchanges between Australian and New Zealand authorities which refer to the possibility of extraditing Mr Bennett. For example, on
17 February 2015 the New Zealand Police discussed seeking warrants for fraud charges in New Zealand which would be “the cornerstone” of an extradition application. Australian authorities in response refer to “any charges you will be seeking extradition on”.
[53] On 17 March 2015, there is a reference in an email to “Christchurch Police currently preparing extradition documentation …”.
[54] On 10 June 2015, Crown counsel emailed the Christchurch Police to say they “understand the Christchurch CIB intends to extradite the defendant”.
[55] On 25 November 2015, Interpol in New Zealand queried in a communication whether, if Mr Bennett were acquitted of the Australian fraud charges, Australian authorities would still have the power to deport him to New Zealand. There was reference to whether an extradition application should be made. Christchurch and Waitemata Police were said to be “waiting in the wings” for an extradition process.
[56] Despite these references the New Zealand authorities did not ultimately seek Mr Bennett’s extradition.
Mutual assistance process
[57] The applicant also points to some correspondence between branches of the New Zealand Police and Australian authorities which indicates the possibility of using the mutual assistance process (under the Mutual Assistance in Criminal Matters Act 1992). For example, on 17 February 2015 Interpol Wellington emailed the Christchurch Police referring to a mutual assistance request being the appropriate avenue to have exhibits seized from the yacht transferred to New Zealand.
[58] Mr Shamy notes that in fact no mutual assistance application was made and it appears that the New Zealand Police went to Australia and uplifted the items. He says the legal basis for doing so is not clear.
General tenor of communications
[59] More generally, the applicant relies on exchanges between the New Zealand and Australian authorities which, he says, go to the submission that the New Zealand authorities had an active role in decisions regarding his removal and connived in the removal in an improper way.
[60] For example, various communications on 25 November 2015 between New Zealand and Australian Police:
Detective Kolmer to Robert Gozdzlialski “Again, I just want to ensure that Bennett falls into our hands when your Government has finished with him”.
[61] Also on 25 November 2015, there was a communication between Interpol and Wellington and the Police in Waitemata which indicated knowledge that if Mr Bennett were to be released he “will go into a detention centre to be sent back here [to New Zealand] …”.
[62] Similarly, also on 25 November 2015, the Christchurch Police articulated their understanding that Mr Bennett was being taken into Australian Immigration custody once released and then “shipped back”; the communication also refers to their ability to escort him back or “the Aussies may do it”.
[63] On 11 December 2015, a communication from the Australian authorities to New Zealand complainants provided an update on Mr Bennett’s acquittal on the charge of yacht theft and notes that he is in custody awaiting trial. It says “whatever the outcome” authorities were preparing for Mr Bennett to be deported to New Zealand where he will be arrested on New Zealand charges.
[64] On 14 April 2016, Christchurch Police communicated with Australian authorities referring to a conversation about whether Mr Bennett would be released into the community or detained to consider his immigration status. The Christchurch
Police referred to his “flight risk”. The Australian response refers to New South Wales Removals having responsibility for arranging removal of non-citizens from Immigration detention.
Passport
[65] There are also some communications relied on by the applicant in relation to his passport.
[66] As noted above, Mr Bennett applied for a New Zealand passport on about 20 April 2016. On 29 April 2016, Interpol Wellington communicated with the New Zealand Police referring to “Australian authorities have made an urgent application for a New Zealand passport”.
[67]The passport was issued on 2 May 2016 but not provided to Mr Bennett.
[68] Mr Bennett does not contend, however, that the New Zealand Police withheld Mr Bennett’s passport from him.
Kinslor opinions
[69] Mr Bennett sought and obtained opinions from Ms Joanne Kinslor who is an expert on Australian immigration law. She provided two opinions, dated 17 October 2018 and 5 April 2019, respectively. Ms Kinslor’s opinions are of considerable assistance to this Court in respect of her knowledge of the application of Australian immigration law and general policy and practice in that area.
[70] In her first opinion, Ms Kinslor concluded that Mr Bennett’s removal from Australia was lawful under s 198(2) of the Migration Act 1958 (Cth) regardless of whether he consented to the removal. She found that at the time of his removal:
(a)He met the definition of being an unlawful non-citizen;
(b)He was being held in Immigration detention, having been detained on 15 April 2016 at a time when he was in the migration zone and was an unlawful non-citizen;
(c)Mr Bennett had not been Immigration-cleared;
(d)Mr Bennett had not been granted a visa (whether a substantive visa or other visa). In fact, Mr Bennett had been issued with a Criminal Justice visa that had been revoked.
[71] On that basis Ms Kinslor concluded that s 198(2) of the Migration Act required his removal “as soon as reasonably practicable”. His consent, or lack of consent, was irrelevant to the operation of the removal procedure.
[72] Ms Kinslor also considered the effect of Mr Bennett having filed an application in the Federal Court seeking review of the decision to remove him from Australia. Her conclusion was that an obligation arising under s 198(2) to remove “as soon as reasonably practicable” is not negated by the mere existence of judicial review proceedings. Mr Bennett’s proceedings before the Federal Circuit Court did not preclude his involuntary removal. She noted that, as a matter of policy, the Department did not generally elect to remove detainees who are seeking judicial review of a decision about a substantive visa, but Mr Bennett did not come within that policy because he was not seeking judicial review of a decision relating to a substantive visa. It would only be in circumstances when Mr Bennett had obtained an injunction from the Australian Federal Court preventing his removal from Australia that his removal would be prohibited. While Mr Bennett had sought an interim injunction from the Federal Circuit Court, he did not obtain it prior to his removal.
[73] Ms Kinslor also addressed s 501 of the Migration Act. In her opinion the evidence did not establish that Mr Bennett held a visa in Australia. Neither did it establish that he had lodged a visa application. On that basis, he could not be subject to a decision under s 501, which only allows for the cancellation of visas or the refusal of visas.
[74] Ms Kinslor noted that s 198 of the Migration Act does not specifically address the destination of removal. She referred to Schlieske v Minister for Immigration and Ethnic Affairs24 and concluded that Schlieske did not establish that Mr Bennett’s removal to New Zealand constituted an unlawful use of power by Australian authorities simply because it was known by them that he was likely to face criminal proceedings in New Zealand.
24 Schlieske v Minister for Immigration and Ethnic Affairs, above n 16, at 730.
[75] Ms Kinslor also addressed Mr Bennett’s evidence that he had initially proposed that he be removed to Indonesia or Canada, where he had lived before. She notes that as far as she was aware Mr Bennett had not presented any evidence to the Department of a current right to enter either of those countries. In any event, prior to 13 May 2016 he had withdrawn any consent he had given to his removal and there was no extant request by him to be removed to any country. In that situation Ms Kinslor thought it unlikely that an Australian court would find the decision to select New Zealand as the country of destination in giving effect to Mr Bennett’s removal from Australia “as soon as reasonably practicable” to be improper.
[76] Ms Kinslor also said, “On the material before me it is not evident that it was reasonably necessary to handcuff and escort Mr Bennett in order to effect his removal from Australia …”. However, she qualified that opinion by noting that she did not have access to the files of the removal officer which might contain information as to why restraint and escort were reasonably necessary.
[77] In conclusion, in her first opinion Ms Kinslor found there was no reasonable likelihood of Mr Bennett establishing that his removal from Australia was unlawful in Australia because of being carried out for an improper purpose. Her primary reason for that opinion was that he was removed under s 198 of the Migration Act. That provision is not a discretionary power, but rather creates an obligation upon an officer who “must remove as soon as reasonably practical an unlawful non-citizen”.
[78] Ms Kinslor subsequently provided a second opinion, dated 5 April 2019, addressing the sharing of information under the Border Force Act 2015 (Australia) and the Arrangement between the Government of New Zealand and the Government of Australia in relation to the sharing of information between specified agencies of each country, dated 23 September 2015 (the Arrangement). Ms Kinslor found that information sharing under the Arrangement is for the purpose of providing advance notice in relation to two categories of people, being those who have had their visa cancelled for character reasons and those who have been made liable for deportation. Mr Bennett did not come into either of those two categories and was not therefore within the scope of the Arrangement.
[79] Her conclusion was that it would be difficult for the Secretary of the Department of Immigration and Border Protection to be reasonably satisfied that the information in relation to Mr Bennett would be used in accordance with the Arrangement because he was not a person to whom it applied. There was no explicit power to disclose information about removees to a foreign government and there were restraints on doing so. Therefore the basis on which Australian authorities disclosed information to New Zealand authorities was unclear.
Establishing misconduct
Burden of establishing misconduct
[80] Before considering the concerns I have just outlined, I first consider whether the applicant has met the burden of establishing misconduct such that a stay should be granted.25 Mr Shamy invited me to conclude that in fact the burden had shifted to the Crown to establish that there had not been misconduct because, he says, it holds the knowledge about the alleged abuse. He cites R v Grant26 in support. It was suggested for Mr Bennett that email correspondence between New Zealand and Australian authorities made it clear that there had been telephone discussions between them at various points which were not the subject of job sheets or otherwise documented and therefore not accessible to Mr Bennett.
[81] However, I also note that Mr Bennett made a number of disclosure requests under both the Australian Freedom of Information Act (FOI) and the New Zealand Official Information Act 1982. The evidence before the Court indicates that the New Zealand Police did disclose some information and responded on more than one occasion advising that the further information sought by Mr Bennett did not exist. Australian officials responded that some at least of the information sought by Mr Bennett under the FOI was withheld on confidentiality grounds.
[82] I am unable to conclude that information has been withheld from Mr Bennett by the New Zealand authorities such as to shift the burden from Mr Bennett to the Crown.
25 Smith v R, above n 9, at [55(e)].
26 R v Grant [2005] EWCA Crim 1089, [2006] QB 60 at [45].
Focus on actions of New Zealand officials
[83] As to the substance of the alleged misconduct, this Court’s focus must be on the conduct of the New Zealand officials. The New Zealand court has supervisory jurisdiction only over the actions of New Zealand officials, not the Australian authorities. Impropriety will be established if representatives of the trial state – here, New Zealand – “acted illegally or procured or connived at unlawful procedures or violated international law or the domestic law of the foreign States or abused their powers in a way that should lead this court to stay the proceedings …”.27
[84] The emphasis is on removal or deportation being for legitimate reasons connected with the host country’s relevant laws, and not for some ulterior purpose. As the Court of Appeal noted in Smith the “hallmark” of the category 2 abuse process is unlawful conduct by New Zealand authorities in the foreign jurisdiction or want of good faith or a proper motive in subverting the defendant’s rights in that jurisdiction.28
[85] As the Court of Appeal also said in Smith, what is needed is a knowing appreciation by the requesting State that deportation is unlawful, or is likely to be unlawful according to those laws. Citing Burns, it said: 29
It is not incumbent on the Requesting State to question or challenge the legality of deportation. We add that that observation applies with particular force where deportation is ordered by a court of competent jurisdiction …
[86] I note the Court of Appeal in Smith talks of a “deportation”. Here Mr Bennett was removed rather than deported. Under the Migration Act a “deportee” is a person in respect of whom a deportation order is in force. A deportation order is made under Division 9 of the Act in respect of certain categories of non-citizens: those in Australia for less than 10 years who are convicted of crimes; those who are deported on security grounds; and those who are convicted of certain serious offences.
27 R v Burns, above n 13, at [22] and [28]–[30].
28 Smith v R above n 9, at [55(b)].
29 At [55(c)].
[87] A “removee” means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2 of the Act. Division 8 of the Act includes s 198, the provision under which Mr Bennett was removed.
[88] I do not think anything turns on the distinction between removee and deportee for the purposes of the analysis in Smith or its application to this case, except in respect of Mr Bennett’s restraint for the purposes of the flight from Sydney to Christchurch which I discuss below.
[89] Mr Bennett’s removal from Australia per se was plainly lawful. He had no Australian passport or visa and was removed as an illegal maritime arrival.
[90] Nor was Mr Bennett’s removal to New Zealand beyond the power of the Australian authorities. Rather, as Ms Kinslor concluded, s 198(2) of the Migration Act required his removal:
(a)he was a New Zealand citizen;
(b)he held a New Zealand passport;
(d) he had not declared any other citizenship;
(c)there was no evidence of his right to enter any other country (despite his earlier expressed preference for Indonesia or Canada);
(d)Removal to the country of nationality is a common feature of removals and deportations;30 and
(e)Mr Bennett had earlier revoked his consent for removal. That did not affect the application of s 198.
30 See for example R v Staines Magistrates Court, ex parte Westfallen [1998] 1 WLR 652.
[91] In that context, I turn to consider Mr Bennett’s claim that the ulterior motives of the Australian and New Zealand Police transformed an otherwise lawful process into an unlawful one.
Extradition
[92] I accept the Crown’s submission that “disguised extradition” does not arise merely because a fugitive is removed or deported rather than extradited.
[93] It is not improper to deport or remove a person when a request for extradition has been or may be anticipated:31
There is nothing improper in a Requesting State making a tactical or strategic decision about extradition, for example by withholding an extradition request because a deportation was likely to be effective or asking for extradition if it was not, so long as the immigration authorities of the host State have a legitimate basis to pursue deportation. Put another way, if a State is proposing legitimately to deport a fugitive, there is nothing abusive in the Requesting State accepting the fugitive on that basis or even facilitating those proceedings.
[94] As the District Court Judge observed,32 by 18 February 2015, New Zealand Police knew that Australian Immigration had cancelled Mr Bennett’s criminal justice visa (issued because he was facing criminal charges in Australia) and that Mr Bennett was deemed to be “an unlawful citizen”.
[95] By 23 February 2015, Interpol confirmed with New Zealand Police that Mr Bennett’s visa had been revoked. Interpol advised Detective Sergeant Farrant not to seek extradition of Mr Bennett. That advice was based on the facts that Mr Bennett was a New Zealand citizen, his criminal justice visa had been revoked and he was going to be deported.
[96] I accept that ultimately the decision was made not to pursue extradition because of indications by Australian authorities that he would be returned to New Zealand after the Australian charges against him were dealt with. That was seen by the New Zealand
31 David Young, Mark Summers and David Corker Abuse of Process in Criminal Proceedings (4th ed, Bloomsbury Professional Ltd, West Sussex) at 8.102.
32 R v Bennett, above n 1, at [108].
Police as being a more expeditious means of achieving his return. That was not improper.
Removal to New Zealand where he faced charges
[97] Nor, as Mr Sinclair submitted, is there anything improper in a state removing or deporting a person to a jurisdiction in which they will face prosecution or serve a sentence.33 In Schlieske v Minister for Immigration and Ethnic Affairs and Others,34 the Federal Court of Australia held that while deportation powers must be used only for deportation, that did not mean:
… that the Minister is precluded from deporting a person into a country where, to the Minister’s knowledge, the person is likely to face criminal proceedings. Having regard only to immigration considerations, deportation of a person to that country may be a proper course; most obviously so in a case … in which the proposed deportee is a national of that country and has travel documents valid only for entry into that country.
[98] To establish an abuse of process, then, something more than merely sending Mr Bennett to New Zealand, where he faced charges, must be established. I deal with each individual point raised by Mr Bennett below, but I first note that, overall, the emails I have read between the New Zealand and Australian authorities indicate they were aware Mr Bennett would either be deported or removed by Australian Immigration or New Zealand would seek extradition. If he were deported or removed, the Australian Police thought it most likely he would be returned to New Zealand.35 Ms Kinslor agreed with that assessment: Mr Bennett is a New Zealand citizen and there was no evidence he had any legal right to be in the other countries he requested to go to. That suggests to me that the authorities did not seek to remove Mr Bennett from Australia to suit New Zealand. Rather, the most natural outcome of Mr Bennett being subject to a s 198 removal was his return to New Zealand. That outcome occurred and the New Zealand Police took full advantage of that.
33 Young, Summers and Corker, above n 31, at [8.99].
34 Schlieske v Minister for Immigration and Ethnic Affairs, above n 16, at 730.
35 Email from Detective Senior Constable Robert Gozdzialski of the Australian Police to Mark Kolmer of the New Zealand Police, 25 November 2015 at 12.10 pm.
[99] As the District Court Judge found “There is nothing in the communications to suggest that New Zealand Police encouraged or connived with Australian authorities to revoke Mr Bennett’s criminal justice visa and to deport him”.36
[100] I accept the circumstances in which the destination “Christchurch, New Zealand” appeared on Mr Bennett’s removal form are somewhat unclear. Nonetheless, I am unable to attribute that insertion to the New Zealand Police. As I discuss below, it is clear that subsequently the New Zealand authorities requested that the original flight booked be changed so that Mr Bennett was flown direct from Sydney to Christchurch, rather than via Auckland. But, as I have said, the evidence establishes that New Zealand was chosen as the destination since Mr Bennett had the right to enter that country,37 and I do not think the uncertainty around the removal form is sufficient to overturn that assessment.
Exchange of information
[101] Regarding the exchange of information between the New Zealand and Australian authorities: 38
There is nothing improper in the Requesting State providing the host State with information and assistance in ongoing legitimate deportation proceedings. Cooperation and communication between State authorities with respect to a certain individual who is sought for prosecution does not, by itself, suggest bad faith or improper motive.
[102] In particular, I note that in Westfallen, the Norwegian authorities provided the English authorities with the flight details of the deportees. As a result, the English authorities were waiting to arrest the deportees when they arrived at the airport. That case concluded there was nothing improper about the communication between the two states.39 The level of communications between the Police in this case is greater than in Westfallen, but the case generally establishes that communication and alerting authorities to flight plans so they can choose to arrest on arrival is not an abuse of the deportation/removal regime.
36 At [108].
37 Under international law, the country of nationality is the only country that is obliged to accept a removee: R v Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 243, at 293.
38 Young, Summers, and Corker, above n 31, at [8.103].
39 At 665.
[103] The Australian Federal Court in Schlieske v Minister of Immigration and Ethnic Affairs discussed whether official conduct such as the communication of flight arrival details might give rise to an inference that the choice of destination has been actuated by an improper purpose. The Court said:40
It may be that the government will choose to deport a fugitive to a country seeking to extradite him, and will do so in the face of the opportunity to deport to another country which is willing to receive him and to which he is willing to travel. Such a choice is not necessarily unlawful but it may, according to the circumstances of the case, give rise to an inference that the choice has been actuated by an improper purpose. In drawing that inference, the court may take into account official conduct outside that authorised by statute, for example the communication of flight arrival details.
[104] However the Federal Court’s comments were made in the context of two previous failed attempts to extradite Mr Schlieske and here, unlike the situation in Schlieske, while the New Zealand authorities had considered a possible extradition application, it was not an active process and there had been no previous, failed extradition attempt. Nor was there evidence of another country willing to receive Mr Bennett. I consider the direct analysis in Westfallen to be more persuasive and analogous to this case on this point.
[105] Ms Kinslor concluded that Australian authorities provided information to New Zealand Police that may not have been in accordance with the Australian Border Force Act 2015 because Mr Bennett’s situation did not come within the 2015 Arrangement. Ms Kinslor expressly noted that her comments were limited to the operation of the Border Force Act 2015. She found that the Arrangement authorises disclosure of protected information from the Australian Department of Home Affairs (which includes the Border Force) to New Zealand authorities about the removal of a person from Australia to New Zealand only where the relevant person has their visa cancelled for character reasons or has been made liable for deportation following criminal conviction. It did not authorise disclosure by the Australian authorities of information about removal of all New Zealand citizens from Australia. Mr Bennett was subject to a s 198 removal which was not within the two specified categories. Ms Kinslor quite properly did not comment on the conduct of the New Zealand authorities in receiving that information.
40 Schlieske v Minister for Immigration and Ethnic Affairs & Ors, above n 16, at 730.
[106] I find however that the New Zealand authorities proceeded on the assumption that it was within the Arrangement. That is apparent from, for example, an email from Interpol New Zealand on 29 April 2016 to Detective Sergeant Paul Tricklebank. Also, on his arrival in New Zealand Mr Bennett was served by the New Zealand Police with a Determination Notice under s 19 of the Returning Offenders (Management and Information) Act 2015, as if his removal was under s 501 of the Migration Act.41
[107] Detective Kolmer, in his evidence, says that receipt of a travel itinerary was “standard procedure for all subjects being removed from Australia to New Zealand, be it under the Returning Offenders (Management of Information) Act 2015, or otherwise, and the Arrangement between Australia and New Zealand”.42
[108] As the Crown submissions noted, officials in both countries appear not to have been aware that there was a lacuna in the 2015 Arrangement, which meant that s 198 removals are not subject to that specific information-sharing regime. The flight information was provided to New Zealand authorities on the assumption that the Arrangement did authorise that step. New Zealand officials do not seem to have been alert to the Australian removal power being exercised.
[109] I conclude that any sharing of flight information outside the formal Arrangement was the result of inadvertent error, not bad faith. In the balancing exercise prescribed in Wilson, this is in my view not significant and I do not consider it can form the basis for a stay.43
[110] I also do not agree that the “general tenor” of the communications between the New Zealand and Australian authorities is cause for concern. Mr Bennett pointed to emails where the New Zealand Police make it clear they wish to arrest him on his return to New Zealand. There is nothing improper in the New Zealand Police taking this view. The context of the emails suggests that the New Zealand Police wanted to be sure they would be kept in the loop (which I have already found was not improper, per Westfallen) and they also made it clear they would seek extradition if Australia did
41 R v Bennett, above n 1, at [61].
42 Affidavit of Mark Peter Kolmer, 10 May 2029, at [8].
43 Wilson v R, above n 5, at [52].
not remove Mr Bennett. As Mr Sinclair noted, Part 4 of the Extradition Act 1999 provides for a simplified extradition procedure between Australian and New Zealand. Ms Wright, Mr Bennett’s alleged co-offender in relation to the yacht, was extradited. This context does not suggest the New Zealand Police were attempting to thwart the extradition regime, but were willing to accept Mr Bennett as a deportee or removee when that became an option. I repeat, that was a strategy available to them.
[111] Mr Shamy also noted the request of the New Zealand Police that Mr Bennett’s flights be changed so that he was flown direct from Sydney to Christchurch. The flights were changed at the request of Detective Sergeant Josh McAllum, the Police National Deportee Coordinator, Interpol, Wellington. Detective McAllum said in an email of 3 May 2016 to Benjamin Stoneley:
Mr BENNETT currently has two warrants to arrest in NZ and it is NZ Police’s intention to execute these upon his immediate arrival. NZ Police are currently planning Mr BENNETT’S arrival and administratively it would greatly assist if the execution of the warrants were able to take place in Christchurch instead of Auckland. This will avoid the need for additional court appearances and subsequent prison transfers between Auckland and Christchurch post arrival.
A direct flight into Christchurch will also limit any opportunity Mr BENNETT may seize upon to engage with other persons, media and potential victims.
[112] The change of flights was plainly to suit the administrative convenience of the New Zealand Police. I do not find anything improper in that. This is not a case where the request by New Zealand resulted in a defendant being sent here instead of to some other nation. I have already explained why it was reasonable for the Australian authorities to send Mr Bennett to New Zealand. He would have been arrested by New Zealand authorities at whichever airport he arrived at. In that particular context, the administrative change was not improper and is not grounds for a stay of proceedings, since Mr Bennett would have been arrested to face his current charges even if no request regarding the city of his arrival had been made.
[113] I agree with Mr Shamy that the District Court ought to have referred to the fact the flights were changed and addressed the issue directly. For the reasons given above, however, I am not satisfied that the decision would be different had the Court considered that point.
Restraint
[114] Mr Bennett says he was restrained by ABF officers before and during the flight from Sydney to Christchurch, and until he had gone through the airbridge at Christchurch airport and into Customs reception. Ms Kinslor refers, in her first opinion, to the policy of the Department of Home Affairs44 that s 198 of the Migration Act implicitly authorises the use of force in removals. She agrees that s 198 implicitly sanctions the use of force where it is necessary to carry out the commands of s 198 of the Act, but notes that how it applies in individual cases will depend upon the facts of each case. She goes on to say that neither the legislative scheme of the Migration Act nor the policy of the Department purports that Australian law can or does authorise the use of force or restraints outside Australia. Rather, international law governs the use of force between Australian and New Zealand territory and New Zealand law governs the use of force within New Zealand territory.
[115] Mr Shamy says that authorisation for the restraint during the flight (an Air New Zealand flight) must be found in the Aviation Crimes Act 1972. Section 15 of that Act gives powers to the commander of the aircraft to take such reasonable measures, including restraint, as may be necessary to protect the safety of the aircraft or persons or property on board; or maintain good order and discipline on board the aircraft; or to enable the commander to disembark or deliver that person in accordance with subsection (4) or (5) of s 15. He says there is no evidence that Mr Bennett’s restraint was required by the aircraft commander. Mr Shamy points to the absence of any explanation from Australian authorities as to why restraint was necessary and asks me to infer that the restraint must have been at the request of the New Zealand Police and its purpose was to effect Mr Bennett’s delivery to New Zealand, rather than to effect his removal from Australia.
[116] In response Mr Sinclair says the manner in which Mr Bennett was brought to New Zealand was not a decision of the New Zealand Police; nor an act done by the New Zealand Police
44 Previously the Department of Immigration and Border Protection.
[117] The mere fact a deportee is escorted or restrained on their journey to the receiving state is insufficient for a finding of an abuse of process.45
[118] I agree with the District Court Judge’s finding46 that there is nothing in any communication from New Zealand Police that suggests to Australian authorities that they place Mr Bennett in handcuffs throughout the flight to New Zealand. While Detective Senior Sergeant Mark Chenery of Interpol did say in an email to Inspector Benjamin Stoneley on 11 May 2016 that “I firmly believe he should be [restrained]”, a response of the same date from the ABF gives some indication of the ABF’s reasoning for the use of restraints:
He [Mr Bennett] is to be escorted and we are using all available information to reduce risks to himself, travelling public and to ensure that he can be positively identified on arrival as BENNETT/WILLIAMS etc and that he is not provided the opportunity to interfere with identity papers.
[119]Detective Kolmer in his affidavit evidence said:47
The trip from Sydney was described by Australian authorities as an “escorted removal”. The New Zealand Police play no role in determining whether or not the Australian authorities escort or handcuff persons being removed from that jurisdiction.
I have no knowledge of the activities of the Australian authorities on the aircraft. The Australian authorities had jurisdiction over Mr Bennett until they left the airside of NZ Customs at Christchurch International Airport.
[120] I agree with the District Court Judge that it is not possible to infer on the information before me that handcuffing of Mr Bennett was at the instigation of the New Zealand Police. Indeed, on 3 May 2016, the New Zealand Police wrote, “I understand Mr Bennett will be escorted” which on its face sounds as though they had simply been informed of a decision and were repeating it, rather than having any direct influence over that decision. While it is true that the New Zealand Police communicated with the Australian authorities on this matter, mere communication is acceptable. It appears that the Australian authorities chose to restrain Mr Bennett for the reasons referred to in the ABF communication referred to at [118] above.
45 See for example R v Staines Magistrates’ Court, ex parte Westfallen, above n 30; and R v Guildford Magistrates’ Court, ex parte Healey [1983] 1 WLR 108 (QB) at 113.
46 At [112].
47 Affidavit of Mark Peter Kolmer, 10 May 2019, at [7] and [9].
Mr Bennett disagrees that he posed a risk, but there was a reasonable basis for the decision, given Mr Bennett’s criminal history.
[121] Ultimately, it is unsatisfactory that there is no direct evidence of why the Australian authorities chose to restrain Mr Bennett, or under what purported authority, but I cannot conclude the decision was plainly done only to ensure Mr Bennett was handed to the New Zealand Police;48 nor can I conclude it was done at the request of the New Zealand Police.
Pending Federal Court hearing
[122] Mr Bennett was removed from Australia before his judicial review application could be heard by the Federal Court. As Ms Kinslor noted, the fact of Mr Bennett’s application to the court for judicial review of the decision to remove him did not as a matter of Australian law affect the obligation under s 198(2) of the Migration Act to remove him “as soon as reasonably practicable”. Nor was he in that category of cases where, as a matter of policy (though not law) removal might have been deferred.
[123] Plainly the decision to remove at the time it occurred was a decision of the Australian authorities. Nor is there anything in the material before the Court that suggests that the New Zealand Police had a role in that decision.
Passport
[124] Mr Shamy says there is no explanation why Mr Bennett’s passport was withheld from him. Without it he could not leave Australia voluntarily, as Immigration officials had told him he could do. Plainly the New Zealand Police did not want him to do so. Mr Shamy acknowledges that there is no evidence that the New Zealand Police asked Australian immigration officials not to give the passport to Mr Bennett, but says it is part of a “pattern” from which I can infer that the withholding of the passport was at the request of the New Zealand Police.
[125] Mr Bennett’s application for a passport was sent to the Consulate-General of New Zealand in Sydney by the Department of Immigration and Border Protection.
48 Schlieske v Minister for Immigration and Ethnic Affairs, above n 16, at 730.
The covering letter notes, “Please return his [Mr Bennett’s] passport to [a named official], Australian Border Force – Villawood Immigration Detention Facility.”
[126] It is a logical inference that, in accordance with that request, the passport was forwarded to ABF personnel at the Villawood Detention Facility. There is no evidence before me of any role in that process of passport request and receipt by New Zealand Police or Interpol. Even if the passport ought not to have been withheld, I cannot on the evidence before me implicate the New Zealand Police in any mistake or wrongdoing.
Mutual assistance process
[127] Finally, I address Mr Bennett’s concern that the New Zealand Police did not use the mutual assistance process to obtain the exhibits that were seized off the stolen yacht by the New South Wales Maritime Police.
[128] On 9 March 2015 Robert Gozdzialski, a Detective Senior Constable with the Marine Investigation Group emailed Craig Farrant:
We sought a legal advisement from our head prosecutor relating to the exhibits we have at hand for the BENNETT matter that are of interest to NZ Police.
Advice I received from our Attorney General is that they are happy for me to hand over any exhibits to NZ Police without the need for a Mutual Assistance Request. However if you need to complete an MAR to satisfy your court needs then its not an issue for NSW Police.
[129] Mr Sinclair pointed to s 5 of the Mutual Assistance in Criminal Matters Act 1992 which provides:
5 Act not to limit other provision of assistance
Nothing in this Act –
(a)derogates from existing forms of co-operation (whether formal or informal) in respect of criminal matters between New Zealand and any other country; or
(b)prevents the development of other forms of such co-operation.
[130] He says there can be cooperation outside the provisions of the Act, so the Court should not infer any wrongdoing on the part of either the Australian or New Zealand
Police simply because this process was not used. I agree that the evidence does not establish anything improper about the cooperation in relation to the exhibits on the yacht.
Conclusion
[131] I am satisfied that the New Zealand authorities did not bring about the determination by the Australian authorities to remove Mr Bennett from Australia. As the District Court Judge correctly concluded, Mr Bennett’s removal from Australia was mandatory under s 198 of the Migration Act, because of his immigration status. It cannot be said that his deportation was due to any meddling by the New Zealand Police. On the contrary, the clear evidence is that Mr Bennet had to be removed from Australia and that New Zealand was the natural destination, being his place of citizenship. The removal being lawful in terms of Australian law there was nothing unlawful in which New Zealand authorities could have colluded.
[132] Mr Bennett asks me to infer an improper motive from the context and manner of removal. I cannot find any such motive. The law cited to me in this case established that it was not improper for the New Zealand authorities to be in communication with Australia regarding Mr Bennett’s return. There is nothing that suggests it was any request by New Zealand authorities that resulted in Mr Bennett arriving at a New Zealand airport. Rather, that decision was made by the Australian authorities and communicated to the New Zealand Police, who welcomed the decision and acted on the information given to them. That does not transform Mr Bennett’s removal into an abuse of process.
[133] The decisions that Mr Bennett objects to, such as being returned to New Zealand rather than removed to Bali or Canada, his passport being withheld, or being restrained on the flight, were ultimately decisions made by the Australian authorities. In terms of the tests set out in Wilson and for the reasons set out above, I do not find misconduct by the New Zealand authorities that would impact on either the fairness of Mr Bennett’s criminal trials or the integrity of the justice process if the trials continue. As the District Court Judge concluded, in the absence of any
wrongdoing by the authorities in New Zealand, there can be no basis for a stay of proceedings.
[134] I cannot find any material error in the findings of the District Court. The judicial review fails.
Costs
[135] The respondents are entitled to costs in the normal event. I invite the parties to confer, and if possible, agree on the quantum. Failing agreement, the second respondent is to file a memorandum (not exceeding 10 pages) within ten working days of the date of this judgment and the applicant is to respond by memorandum (again, not exceeding 10 pages) within a further ten working days.
Gwyn J
Solicitors/counsel:
SJ Shamy, Bridgeside Chambers, Christchurch Crown Law, Wellington
0
4
0