Commonwealth of Australia v B
[2016] NZHC 302
•29 February 2016
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF RESPONDENT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000119 [2016] NZHC 302
BETWEEN COMMONWEALTH OF AUSTRALIA Appellant AND
B Respondent
Hearing: 9 February 2016 Appearances:
K South for the Appellant
J J McCall for the RespondentJudgment:
29 February 2016
JUDGMENT OF NATION J
Introduction
[1] In a judgment of 11 November 2015, Judge Murfitt in the District Court declined to make an order requiring Mr B to surrender himself for extradition to Australia.1 The Commonwealth of Australia had sought his extradition to face seven charges of indecent treatment of a boy under 17 years in the state of Queensland, offences alleged to have occurred between 2 September 1985 and 1 January 1986.
The complainant was aged 13 at the time.
1 The Commonwealth of Australia v [B] [2015] NZDC 22153.
COMMONWEALTH OF AUSTRALIA v B [2016] NZHC 302 [29 February 2016]
[2] A party may appeal against that determination on a question of law only.2
Subpart 8 of pt 6 of the Criminal Procedure Act 2011 applies to such an appeal.3 The appeal was brought by way of case stated. With the agreement of counsel, the question was stated as follows:
5. I found that the respondent had established on the balance of probabilities that it would now be unjust or oppressive to make a surrender order pursuant to s45. I was satisfied the circumstances of this particular case, in the context of the time which has passed since the offence occurred, justified the discretionary relief against making an order for the respondent’s surrender for extradition (at [47] of my decision).
6. I determined that on the balance of probabilities, I was satisfied that it would be unjust and/or oppressive to grant the surrender order.
7. The question for the opinion of this Court is:
a.Were the factors I identified at paragraphs [47]-[55] of the decision sufficient to exercise the discretion to refuse Mr [B]’s surrender under s8(1)(c) of the Extradition Act 1999.
[3] Paragraphs [47] to [55] of the Judge’s decision were as follows:
[47] I have given this matter careful consideration, and have reached the view that the respondent has established on the balance of probabilities that it would now be unjust or oppressive to make a surrender order pursuant to s
45. I am satisfied the circumstances of this particular case, in the context of the time which has passed since the offence occurred justifies the
discretionary relief against making an order for the respondent’s surrender
for extradition.
[48] I am conscious that the time which has elapsed since the alleged offending thirty years, is very lengthy, but such delays are not unheard of in cases involving historical sexual abuse. The willingness of complainants to acknowledge their history is a complicated process which sometimes delays the process of accountability. None the less, the other circumstances of this particular case, in combination with that passage of time, operate to render extradition unjust and oppressive.
[49] Those circumstances in particular, unlike those which have applied in any of the cases cited by counsel, revolve around the fact that Mr [B] has already been subject to criminal sanctions for similar offending, stemming from the same time (the mid nineteen eighties) and involving the same peer group as the current complainant for which he was sentenced to probation. For subsequent offending he has served a term of imprisonment.
[50] From March 2000 the Queensland police have been aware of the alleged offended against the current complainant but at that time he was not
2 Extradition Act 1999, s 68(2).
3 Extradition Act 1999, s 69(2).
emotionally strong enough to lay a complaint himself. However in 2002 he did volunteer a complaint to the Queensland police, some months before Mr [B] was sentenced to imprisonment for other offences against other victims.
[51] While it is not necessary for me to conclude that the prosecutorial delay was blame worthy, I have reached a conclusion that the Queensland police showed a lack of interest or energy in pursuing the enquiry once [Mr N] had shown himself willing to lay a complaint and engage in the prosecution process. It would not have been a difficult exercise to track down [Mr N] and obtain a statement after he failed to keep the scheduled appointment in early 2002.
[52] Since that time, Mr [B] has been tried, sentenced and has served a term of imprisonment in Australia, and deported from that country while the Australian prosecutorial forces were all the time aware of this alleged offending, and could have brought a prosecution to bear.
[53] Since that time, Mr [B] has established himself in New Zealand, living
at his father’s home, and apparently without any known offending.
[54] It would now in my view be oppressive to require him to return again to Australia to face further charges, involving one further complainant for offending now 30 years earlier.
[55] In my view, whilst fully acknowledging the position of [Mr N], the overall interests of justice are best served by not requiring Mr [B] to surrender himself for extradition.
The factual background
[4] The Judge set out the factual context which was crucial in his decision. The Judge’s conclusions were reached against that background. His narrative was as follows:
[8] [I]t seems that Mr [B], a New Zealander, was resident in Australia sometime before 1984 until he was deported to New Zealand in October
2006.
[9] Between 2 September 1985 and 1 January 1986, it is alleged Mr [B] (now aged 59 years) committed indecent offences against [Mr N], then aged
13 years old. The alleged offending involved mutual oral sex and attempted
anal penetration.
[10] On 3 August 1995, the respondent was convicted in Australia of two offences, which occurred in 1984 and 1986, of indecently dealing with a boy under the age of 16 years, for which he was sentenced to two years probation with special conditions as to counselling and treatment.
[11] On the same date, 3 August 1995, according to the timeline exhibited to Senior Constable Blackburn’s affirmation of 28 August 2015, he was sentenced to two years imprisonment, suspended for three years, for a further
charge of indecent dealing with a child under the age of 12 years, with aggravating circumstances, which occurred in 1994.
[12] In 1995 or early 1996, [Mr N] encountered the respondent in a shopping mall, and delivered some retributive justice by assaulting him.
[13] On 19 March 2000, Queensland Police received, for the first time, information about the alleged offending against [Mr N] by the respondent. Over several weeks, five attempts were made to contact [Mr N] to obtain a complaint between late March and the beginning of April. He did not respond, but on 1 May his mother contacted Queensland Police, advising that her son was not emotionally strong enough at the time to make a statement. The Queensland Police closed the file.
[14] Two years later, [Mr N] himself contacted the Queensland Police and reported the abuse. It is not known whether he spoke to an investigating officer, or a non sworn assistant at the counter. Arrangements were made for [Mr N] (by then aged about 30) to attend an appointment to provide a statement, but [Mr N] did not attend the appointment. The complaint file was closed on 2 June 2002, pending further information from [Mr N].
[15] On 28 October 2002, the respondent was convicted of further offences, which had been committed between 1996 and 2001, for which he was sentenced to five years imprisonment overall. These included two for maintaining unlawful relationships with a child, with aggravating circumstances, for which a sentence of five years imprisonment was imposed. Nine other charges of indecent treatment of children with aggravation resulted in three years (concurrent) imprisonment. Mr [B] was also charged with breaching the 1995 suspended sentence (no doubt for having re-offended during the term of the suspended sentence), and for that, he was sentenced to two years imprisonment (concurrently).
[16] On 27 October 2006, the respondent was released from prison in
Australia, and deported to New Zealand.
[17] He has lived since that time, at […], where he lives with his 86 year old father. No subsequent offending has been alleged against him since that time.
[18] On 19 March 2012, [Mr N] made a further formal complaint to the
Queensland Police, with formal statements following on 14 June and 1
December 2012. The second formal statement was made following a telephone call between [Mr N] and Mr [B], and recorded by Queensland Police. During that telephone call, the complainant is said to have apologised to [Mr N], and made some corroborative admissions.
[19] In October 2013, Queensland Police contacted New Zealand Police to assist in locating Mr [B], with a view to preparing extradition proceedings. On 31 October 2013, the Australian arrest warrant was issued for the charges in respect of which this extradition is sought.
Principles relevant to appeal by way of case stated on question of law
[5] Because this appeal does not proceed by way of re-hearing, it is not for me to make a general assessment of all the evidence that the Judge relied on and come to my own decision as to whether the decision he made was the correct one. The appeal is to be allowed only if there was an error of law in the determination that he made.
[6] Because of that, I consider the question of law that would more appropriately be the subject of the case stated to be:
Could the factors identified at paragraphs [47]-[55] of the decision be sufficient to justify the Judge exercising the discretion to refuse Mr B’s surrender under s 8(1)(c) of the Extradition Act 1999?
[7] For the appellant, Ms South submitted that:
· the Judge’s decision was based on his consideration of the overall interests of justice rather than merely delay and the circumstances of the case;
· the Judge had made an error of law in overlooking the need for there to be a clear nexus between the delay, relevant circumstances and any unjust or oppressive result;
· on the evidence, there was no such nexus;
· the decision failed to address the comity between Australia and New
Zealand; and
· the decision failed to address the respondent’s ability to seek a stay of
prosecution in Australia on the basis of delay.
[8] In developing these bases of appeal, Ms South also submitted that:
· the Judge had erred in not distinguishing between complainant delay and prosecutorial delay;
· the Judge erred in concluding that the Police had shown a lack of vigour in failing to further pursue an investigation or potential prosecution after the complainant had made a complaint of sexual misconduct against the respondent (That submission would be relevant if I find there was an error of law in terms of the question on the case stated and if I then proceed to reconsider all the evidence applying the correct legal test. In the absence of my holding there was an error of law, this submission is essentially an argument that, on the facts, the Judge was not entitled to come to the opinion he did.);
· the Judge erred in referring to the fact the respondent had established himself in New Zealand without any known offending; and
· the Judge erred in referring to the extradition being sought in respect of just one complainant.
[9] For the respondent, Mr McCall submitted that the Judge had not relied on the personal circumstances of the respondent in exercising a discretion against requiring extradition, but rather had reached his decision on the basis of delay in “all the circumstances of the case” in a way that he was entitled to do. He argued that the factors relied on by the District Court Judge were sufficient to justify the Judge exercising his discretion in the way he did.
Discussion
[10] In his decision, the Judge set out the legal framework within which he had to reach his decision. He correctly stated that the issue was whether the respondent had established an affirmative defence under s 8(1)(c) of the Extradition Act 1999, which establishes a discretionary restriction on surrender.
[11] Section 8 of the Act provides:
8 Discretionary restrictions on surrender
(1) A discretionary restriction on surrender exists if, because of—
(a) the trivial nature of the case; or
(b) if the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(c) the amount of time that has passed since the offence is alleged to have been committed or was committed,—
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
(2) A discretionary restriction on surrender exists if the person has been accused of an offence within the jurisdiction of New Zealand (other than an offence for which his or her surrender is sought), and the proceedings against the person have not been disposed of.
[12] He noted s 45(5)(a) of the Act did not allow the Court to determine any evidence in contradiction of the allegations. He stated:
The matter is to be determined in terms of the lapse of time, and whether or not all the circumstances of the case lead to a conclusion that it would be unjust or oppressive to extradite Mr [B].
[13] The Judge correctly referred to the standard of proof which had to be met by the respondent as being on the balance of probabilities.4
[14] He noted “the threshold for establishing a defence against extradition is high, or putting it differently, the gateway is narrow”. He referred to the observation in the High Court that intervention by the Court, in terms of its s 8 discretion, will be exceptional or rare.5
[15] The Judge referred to M v Commonwealth of Australia, in which the appellant had sought to avoid extradition in the context of delay but with reference to
4 Wolf v Federal Republic of Germany [2001] NZAR 536 (HC).
5 Referring to Wolf v Federal Republic of Germany, above n 3 at 68 per Potter J.
Personal matters are not relevant unless there is a clear nexus or connection between those matters, a relevant criterion set out at s 8, and in the circumstances of the case, any oppressive or unjust factor.
[16] He referred to a similar statement from the Court of Appeal that:
personal circumstances of the alleged offender can come within the statutory phrase ‘all the circumstances of the case’, and so be relevant to a s 8 inquiry, only if there is a clear nexus between those personal circumstances and the issues of delay and good faith.
[17] The judge referred to the high threshold required to meet the terms “unjust or oppressive”. He noted dicta to the effect that “unjust” generally referred to prejudice to an accused in presenting a defence to the charge; “oppressive” generally relates to hardship to an accused, resulting from a change in his circumstances that has taken
place during the period under consideration.7
[18] The Judge referred to the fact that, for well recognised and understandable reasons, there could often be delays of many years before complainants could articulate and present complaints of sexual abuse which they alleged they had suffered as children, such that delays of more than 20 years were unremarkable in the context of historical sexual abuse claims.
[19] There was no suggestion that the Judge was in error when he described in the above ways the legal framework within which he had to reach his decision. The statements which he made were consistent with the principles which Ms South submitted were relevant.
[20] The Judge did not expressly refer to the particular comity that existed as between Australia and New Zealand. He did not need to. The issue which he had to
consider was the only issue because there was such comity.8
6 M v Commonwealth of Australia [2013] NZHC 2348.
7 Police v Thomas (1989) 4 CRNZ 454 (HC) at 458.
8 This comity was recognised through the appellant’s application being made under Part 4 of the Act because Part 4 requires the comity exists between Australia and New Zealand, the commonality of legal processes and the common safeguards that exist in New Zealand and
[21] The comity between Australia and New Zealand was also recognised in the observations which the Judge made as to the high threshold the respondent had to meet to obtain the exercise of a discretion in his favour and the exceptional or rare circumstances in which such relief would be available.
[22] It is also significant that the Judge’s decision was not based in any respect on the potential unfairness that might arise through the respondent being subject to criminal proceedings in Australia. The Judge’s decision was in no way influenced by whether or not there might be a stay of the proceedings in Australia on the basis of a judgment made by an Australian court. The issue for the Judge in the District Court here was whether or not, in the context of delay, it would be unjust or oppressive for the respondent to be extradited to Australia so that proceedings could continue against him there. That could be an issue only for the District Court in this country and could not be one on which an Australian court could be asked to give judgment.
[23] I am satisfied the Judge proceeded on the basis that the factors which he had to consider, arising out of the circumstances of the case, had to have a nexus to the delay which had to be established for him to be able to exercise his discretion against requiring surrender. I say that, firstly, because the Judge recognised that there had to be such a nexus. Secondly, he expressly stated in para [47] of his judgment that he was satisfied “the circumstances of this particular case, in the context of the time which has passed since the offence occurred” justified the discretionary relief he was granting. In para [48], the Judge referred to the delays that could commonly occur in cases involving historical sexual abuse but then went on to say that “none the less, the other circumstances of this particular case, in combination with that passage of time, operate to render extradition unjust and oppressive”.
[24] The Judge then referred to circumstances which were connected to, or had a nexus to, the delay.
[25] The Judge referred to what he found to be the reasons for the delay. He mentioned the fact that the Police had been informed of the alleged offending
Australia to ensure that people charged with criminal offences will have the protection of due process.
respondent was sentenced to imprisonment for other offences against other victims. Those were matters connected with the delay which the Judge found provided a basis for the exercise of his discretion in favour of the respondent.
[26] The Judge did refer to the respondent having been deported from Australia to New Zealand in 2006. Australian authorities did this after the respondent had completed a sentence of imprisonment, partly in respect of a two year suspended sentence of imprisonment activated in 2002 for offending against friends of the present complainant. This offending was of a similar nature and committed at a similar time to that alleged by the current complainant. In my view, that was a circumstance of the case which could rightly be considered by the Judge. It was not a circumstance relating to him personally unconnected to the delay. It was certainly not evidence of “compelling or extraordinary circumstances of the person, including, without limitation, those relating to the age or health of the person”. These are matters referred to in s 30(3)(d) that can expressly be considered by the Minister and be taken into account in deciding whether it would be unjust or oppressive to surrender the person for extradition, in contrast to the more limited circumstances which the courts have held can be taken into account in considering the application
of s 8(1)(c).9
[27] The Judge, in para [53], did refer to the fact that, since deportation, the respondent had established himself in New Zealand, living at his father’s home and apparently without any known offending. Those matters were personal to the respondent but, reading the Judge’s decision, I am not persuaded they were circumstances that were highly material to the decision which the Judge came to. His determination, that it would be oppressive to require the respondent to surrender himself for extradition, was based on the nature of the offending alleged against him (when compared against other offending that Police in Queensland had investigated fully and prosecuted and, as a result of which, the respondent had been sentenced to imprisonment), the fact that a complaint of similar conduct, which had been brought
to the attention of the Police, had not been investigated fully or prosecuted, and the
9 Wolf v Federal Republic of Germany (2001) 19 CRNZ 245 (CA) at [49].
with the inevitable consequence that he would have to live and make a home for himself in New Zealand.
[28] I am not persuaded the Judge thus found it would be unjust and oppressive to require extradition because of circumstances that related to the respondent personally or which otherwise did not have a nexus to the delay that had occurred.
[29] It was open to the Judge, on the evidence which was before him, to proceed on the basis that the Police had not pursued an investigation with vigour with the result that the respondent was deported to New Zealand at a time when the Police had notice that a complaint of serious criminal offending had been made against him some years previously by this complainant. The evidence was that a complaint had been made initially by the boy’s mother. In 2002, the complainant had, himself, made a complaint to the Police which must have contained sufficient detail for the Police to have known the general nature of the allegations he was making. The complainant did not trouble himself to make the full formal statement which the Police wanted from him as a condition of carrying on with the investigation.
[30] There was only limited evidence as to Police attempts to contact him to obtain the statement they wanted. There was no evidence of any further contact with the complainant’s mother. In the context of similar allegations being made against the respondent by other people, and given the Judge’s justified understanding that Police and legal processes in Queensland would be similar to those that would be followed in New Zealand, I consider there was a reasonable evidential basis for the view which the Judge came to as to the way the Police dealt with the 2002 complaint.
[31] The Judge noted that the Police did not have to be blameworthy for the delay which had occurred as a result to be weighed in the balance. The Judge acknowledged the delay that can often occur, for understandable reasons, with adults complaining to the Police of historic sexual abuse. In considering delay and the circumstances of this case, it would have been appropriate for him to take into
to involve the Police further after talking to Police of his allegations in 2002.
[32] While prosecutorial delay may have a particular significance, the delay which a Judge is required to consider, pursuant to s 8(1)(c), is the delay “that has passed since the offence is alleged to have been committed or was committed”. Although the Judge did refer to prosecutorial delay, he did not have to distinguish between prosecutorial and complainant delay in applying s 8(1)(c). He took into account both in referring to the delay of 30 years between the alleged offending and the requested extradition.
[33] The Judge did have regard to the fact there was just one further complainant whose allegations would be the subject of the charges on which the Commonwealth was seeking extradition. That was clearly a circumstance relating to the case and not a matter personal to the respondent.
[34] The number of complainants and the number of charges faced by the respondent have been considered relevant by prosecuting authorities in Australia, and by the courts in this country, in deciding whether a defendant in New Zealand should be extradited. In M v Commonwealth of Australia, Australian authorities declined to make an application for extradition of M because there was just one complaint against him in Australia at the time. Further complainants came forward over the next 4 or 5 years, and still Australian authorities made no application for extradition. However, an application for extradition was made in November 2011 by which time there were 35 complainants. The Commonwealth of Australia sought the extradition of M to face 250 charges of sexual offending alleged to have been committed against those 35 complainants. On appeal, Whata J in the High Court referred to this background.
[35] Furthermore, the significant delay that has occurred in this case between the alleged offending and the application for extradition has arisen in part because neither the complainant nor the Queensland Police have pursued the complaint which was initially brought to Police notice in Queensland in 2000 and then 2002. It was because of that the Queensland Police did not do anything to intervene in the
steps taken by other Australian authorities to deport the respondent in 2006. Although the fact the respondent has been living here was a personal circumstance relating to the alleged offender, such a personal circumstance can come within the statutory phrase “all the circumstances of the case” and be relevant to a s 8 inquiry if there is a clear nexus between those personal circumstances and the issue of delay.10
[36] The circumstances in which Mr [B] came to New Zealand, through his deportation here by Australian authorities, were very different to those in Wolf where a German had escaped from prison in Germany and came to New Zealand under an assumed name. They were very different from Mailley v District Court of North Shore, where a New Zealander had returned to New Zealand in breach of his bail conditions pending trial in Australia for charges of fraud.11
[37] I do not consider the District Court Judge made any error of law in having regard to the particular circumstances which he took into account in determining that it would be unjust and oppressive to require the respondent to surrender for extradition or in having regard to all the circumstances of the case when exercising his discretion as to whether there should be an order for surrender.
[38] I accordingly find the Judge was not in error of law in reaching his decision. The appeal is accordingly dismissed.
Solicitors:
Crown Solicitor’s Office, Raymond Donnelly & Co., Christchurch
Papprills Lawyers, Christchurch.
10 Wolf v Federal Republic of Germany [2001] 19 CRNZ 245 at [48] per French J.
11 Mailley v District Court of North Shore [2013] NZCA 266.
0
2
0