Commonwealth of Australia v B - [2016] NZHC 302

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 302
Decision Date: 29 February 2016

CaseChat Overview and Summary

The case of the Commonwealth of Australia v B involves an appeal by the Commonwealth of Australia against a decision of the District Court which declined to make an order requiring Mr B to surrender himself for extradition to Australia. The Commonwealth sought Mr B's extradition to face charges of indecent treatment of a boy under 17 years in Queensland, alleged to have occurred between 2 September 1985 and 1 January 1986. The appeal was brought on a question of law only, and the appeal court had to determine whether the factors identified by the District Court Judge were sufficient to justify the Judge exercising the discretion to refuse Mr B's surrender under s 8(1)(c) of the Extradition Act 1999. The appeal court found that the District Court Judge did not make any error of law in reaching his decision and dismissed the appeal.

The legal issues in the case revolved around the application of s 8(1)(c) of the Extradition Act 1999, which establishes a discretionary restriction on surrender if it would be unjust or oppressive to surrender the person due to the amount of time that has passed since the offence was alleged to have been committed. The District Court Judge had to consider whether the delay in the case and the circumstances of the case led to a conclusion that it would be unjust or oppressive to extradite Mr B. The appeal court found that the District Court Judge correctly applied the legal principles and took into account all the relevant circumstances of the case, including the delay and the respondent's previous convictions for similar offences.

The appeal court found that the District Court Judge did not err in considering the respondent's deportation to New Zealand as a relevant circumstance of the case. The Judge's decision was based on the nature of the alleged offending, the fact that a complaint of similar conduct had not been investigated fully or prosecuted, and the delay of 30 years between the alleged offending and the requested extradition. The appeal court also found that the District Court Judge correctly applied the principles of comity between Australia and New Zealand and did not need to refer to the particular comity that existed between the two countries.

The final orders of the appeal court were to dismiss the appeal and to uphold the decision of the District Court. The appeal court found that the District Court Judge did not make any error of law in reaching his decision and that the factors he took into account were sufficient to justify the exercise of the discretion in his favour. The appeal court did not proceed to reconsider all the evidence applying the correct legal test, as it found no error of law in the District Court Judge's decision.

Orders