Daffue v Republic of South Africa

[2022] NZHC 2722

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-325

[2022] NZHC 2722

BETWEEN

DANIEL DAFFUE

Appellant

AND

REPUBLIC OF SOUTH AFRICA

Respondent

Hearing:	17 October 2022
Appearances:	G Harvey and E McClay for Appellant S Barr for Respondent
Judgment:	20 October 2022

JUDGMENT OF LANG J

[on appeal against finding as to eligibility for surrender]

This judgment was delivered by me on 20 October 2022 at 11 am.

Registrar/Deputy Registrar Date……………

Solicitors:

Public Defence Service, Auckland R Mansfield KC, Auckland

DAFFUE v REPUBLIC OF SOUTH AFRICA [2022] NZHC 2722 [20 October 2022]

[1]        Mr Daffue has been charged in the Republic of South Africa (the Republic) with alleged sexual offending against his two daughters and a stepdaughter between 1998 and 2008.

[2]        Mr Daffue emigrated to New Zealand in 2008 and is now a citizen of this country. The Republic has applied for him to be extradited to face trial in South Africa.

[3]        In a decision issued on 25  August  2022  Judge  C  H  Bennett  found  that Mr Daffue was eligible for surrender under s 24 of the Extradition Act 1999 (the Act).1 Mr Daffue appeals against the Judge’s decision.

Jurisdiction

[4]        The right of appeal against a determination that a person is eligible for surrender is limited to a question of law.2 Further, s 72(2)(a) of the Act provides that this Court on appeal must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination subject to appeal.

The statutory scheme

[5]        A request for extradition must be transmitted to the Minister of Justice and supported by the documents specified in s 18(4) of the Act. Once a request has been made, the Minister may provide a District Court Judge with written notification of the request, and ask that the Judge issue a warrant for the arrest of the person whose extradition is sought.3

[6]        Following arrest, the District Court is required to determine whether the person is eligible for surrender under s 24 of the Act. This requires the Court to determine whether the requirements set out in s 24(2) have been met. In addition, under s 24(4), the Court may determine that a person is not eligible for surrender if satisfied that a discretionary restriction applies under section 8.

[7]Section 8 relevantly provides:

1      Republic of South Africa v Daffue [2022] NZDC 10526.

2      Extradition Act 1999, s 68.

3      Sections 19 and 20.

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.

…

[8]        If a person is found eligible for surrender under s 24, the Minister must then decide, under s 30, whether the person is to be surrendered. Section 30 permits the Minister to take into account a wide range of factors, including the possibility that a discretionary restriction applies under s 8.4   The Minister also has the ability under    s 30(3)(d) to take into account any compelling or extraordinary circumstances of the person. These include, without limitation, those relating to age or health that would make it unjust or oppressive to surrender the person. Section 30(3)(e) confers an open- ended discretion on the Minister to decline surrender for “any other reason”.

Issues

[9]        Mr Daffue does not challenge the Judge’s conclusion that the Republic had established the threshold requirements for a finding of eligibility under s 24(2). The issues raised on appeal relate only to the Judge’s conclusion that he had not established the existence of any discretionary restrictions under s 8.

[10]      Mr Daffue contends that the Judge erred in law in rejecting his submission that a discretionary restriction existed under s 8(1)(b). He says that there was an absence of good faith arising from prosecutorial delay by the South African authorities and their use of the extradition process to ensure he was detained before trial.

4      Section 30(3)(b).

[11]      Mr Daffue also contends that a discretionary restriction existed under s 8(1)(c) because of the length of time that had passed since the offences were allegedly committed. He argues that, having regard to all the circumstances of the case, the Judge ought to have concluded that it would be unjust or oppressive to find him eligible for surrender.

Decision

Lack of good faith

[12]      I do not need to analyse the approach taken by the Judge in dealing with this issue because I consider there is a fundamental flaw in the argument advanced on  Mr Daffue’s behalf. As will be evident from the wording used in s 8(1)(b), a restriction on surrender may be established where the accusations against the person were not made in good faith and/or in the interests of justice.

[13]      Mr Daffue does not suggest the complainants have made their accusations other than in good faith or that they made them for a purpose not connected with the interests of justice. Nor does he contend the authorities in the Republic have laid the charges and sought his extradition for a collateral purpose unconnected with the interests of justice. His argument is based on the procedural approach they adopted after the charges were laid. I do not consider this engages s 8(1)(b).

Prosecutorial delay

[14]      The argument for Mr Daffue under this ground is that there has been inordinate delay by the Republic both in laying charges and pursuing the request for extradition. He says extradition would now be oppressive or unjust because he will be required to spend time awaiting trial in South Africa in prisons that are overcrowded, and in which he is at high risk of contracting diseases.

[15]      Inordinate delay by a country seeking extradition may be one of the circumstances the Court takes into account in considering whether extradition would be unjust or oppressive.5 However, it is not the test. The issue for determination under

5      Commonwealth of Australia v Mercer [2016] NZCA 503 at [53].

s 8(1)(c) is whether the amount of time that has passed since the offence was allegedly committed means that, in all the circumstances, it would now be oppressive or unjust to surrender the person. It is therefore necessary for Mr Daffue to show a link between the 14 years that have elapsed since 2008 and the circumstances upon which he relies to establish oppression and injustice. It is not necessary for him to show that the delay has caused any change in circumstances. It is sufficient for him to demonstrate that the delay allowed the change to occur.6

[16]      One example of such a case is Curtis v Commonwealth of Australia.7 In that case the appellant was alleged to have committed sexual offences in Australia between 2009 and 2010 when he was 14 to 15 years of age. He moved to New Zealand in 2011 and had built a new life for himself here by the time he was served with an extradition warrant in May 2016. He was in a long-term relationship and had obtained educational qualifications. There had been a delay of five years since the offences were allegedly committed, and the appellant had not been responsible in any way for that.

[17]      The delay also meant the appellant would be sentenced as an adult if found guilty of the charges. This meant he was at greater risk of a sentence of imprisonment than would have been the case if he had been sentenced earlier. In addition, the delay had induced in the appellant a sense of security that he would not be prosecuted. Furthermore, there was no guarantee he would be able to obtain a stay of the proceedings in Australia on the grounds of delay. The Court of Appeal concluded that these factors rendered it oppressive and unjust for the appellant to be extradited to Australia.8

[18]      In the present case Mr Daffue has not established any link between the lapse of time that has occurred since the alleged commission of the offences and current prison conditions in the Republic. There is nothing before the Court to suggest that prison conditions in South Africa have deteriorated since 2008 to the point where it would now be unjust and oppressive for Mr Daffue to be surrendered.

6      Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [22].

7      Curtis v Commonwealth of Australia [2018] NZCA 603, [2019] 2 NZLR 621.

8      Above n 7, at [129]-[130].

[19]      I also accept Mr Barr’s submission for the Republic that the material Mr Daffue relied upon to establish the unsatisfactory nature of prison conditions in South Africa was wholly inadequate. This comprised articles in magazines and journals. They cannot be regarded as authoritative expositions of the current (or past) state of prison conditions in South Africa.

[20]      Finally, I accept Mr Barr’s submission that the Minister would be entitled to enquire into this issue when he makes a determination under s 30 of the Act. If the Minister considers it to be of any relevance, he can seek advice from the Republic regarding the likelihood of Mr Daffue being remanded in custody following extradition and the conditions he is likely to encounter. Those issues fall well beyond the scope of the enquiry the Court is equipped to undertake in the present context.

Result

[21]The appeal is dismissed.

Lang J