Lucas aka Tsuro v Commonwealth of Australia
[2025] NZHC 804
•8 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000635
[2025] NZHC 804
UNDER Section 68 of the Extradition Act 1999 BETWEEN
LEROY LUCAS
(aka LEROY TAWANDA TSURO)
AppellantAND
COMMONWEALTH OF AUSTRALIA
Respondent
Hearing: 24 March 2025 Counsel:
Q Duff and G Jubal for Appellant
RMA McCoubrey and HF Brown for Respondent
Judgment:
8 April 2025
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 8 April 2025 at 11 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland. Q Duff, Auckland.
G Jubal, Auckland.
LUCAS (aka TSURO) v COMMONWEALTH OF AUSTRALIA [2025] NZHC 804 [8 April 2025]
The appeal
[1] Leroy Lucas, who was Leroy Tsuro, is charged in Australia with aggravated armed robbery. Australia has sought Mr Lucas’s extradition. Surrender (for extradition) may be declined if, having regard to the time that has passed since the alleged offence, and all of the circumstances of the case, “it would be … oppressive to surrender the person”.1 The District Court found Mr Lucas eligible for surrender under the Extradition Act 1999. Mr Lucas appeals that determination. The appeal is, necessarily, confined to a point or points of law.2 The point, essentially, is whether it would be oppressive to surrender Mr Lucas to Australia. Mr Lucas was 18 years old when he committed the alleged offence. He is now in his mid-twenties.
Background
[2]The background is helpfully captured by the decision of Judge A M Manuel:3
[4] It is alleged that on 5 September 2016 Mr Lucas, alongside Sun Lin Oo, robbed a McDonalds restaurant in Morley, Western Australia armed with a meat cleaver and caused bodily injury to a complainant. He was 18 years old at the time.
[5] On 20 September 2016 Mr Lucas was arrested and interviewed by the Western Australia Police Force (WAPOL). He denied the offending and due to the lack of evidence at that stage he was released. Mr Lucas left Australia for New Zealand the following day, 21 September 2016. He is a New Zealand citizen.
[6] On 20 September 2016 Mr Oo was arrested and charged with aggravated armed robbery in relation to the offending.
[7] On 11 October 2016 Mr Lucas’s DNA was recovered from clothing worn by the complainant. This prompted WAPOL to try to arrest Mr Lucas once again. However, they discovered from the Australian Department of Immigration that he had left Australia the month before.
[8] WAPOL began an extradition request to uplift Mr Lucas from New Zealand. On 8 December 2016 a warrant for his arrest was issued at Perth Magistrate’s Court (the Australian arrest warrant).
[9] On 1 January 2017 Mr Oo entered a guilty plea to the offence and was sentenced to four years and six months imprisonment.
1 Extradition Act 1999, s 8(1)(c).
2 Extradition Act, s 68(1). But see Commonwealth of Australia v BW [2025] NZCA 8 at [24].
3 Commonwealth of Australia v Tsuro [2024] NZDC 26181 (footnotes omitted).
[10] On 20 September 2017 Mr Lucas committed the offence of aggravated robbery in New Zealand. He was convicted and sentenced to two years and three months imprisonment. He was released on parole in 2020 with the parole period concluding on 7 July 2020. During this time period he was unable to be extradited.
[11] After which WAPOL again commenced extradition proceedings. However due to COVID-19 restrictions and border closures Mr Lucas’s extradition was paused in August 2020.
[12] The extradition process was recommenced in late 2022 with Mr Lucas’s criminal justice entry visa (CJEV) being granted on 23 June 2023.
[13] The Australian warrant was endorsed in the Auckland District Court on 19 January 2024. Mr Lucas was arrested on 14 February 2024 and has been remanded in custody since then.
[3] Also helpful is the Judge’s timeline, which is based on the evidence before the District Court:4
Date
Event
Alleged offending
5 September 2016
Alleged offending occurs in Australia.
Investigation 20 September 2016 Mr Lucas is arrested and interviewed in relation to the offending. He denies the offending and due to the lack of evidence at that stage, he was released. Mr Oo is arrested and charged with Aggravated Armed Robbery in relation to the offending. Departure from Australia
21 September 2016
Mr Lucas departs Perth, Australia on flight NZ176 bound to New Zealand accompanied by his stepfather and arrives at Auckland Airport.
Investigation continues
11 October 2016
Mr Lucas’s DNA is recovered from the clothing worn by the complainant Malik Asad.
WAPOL commence inquiries to arrest Mr Lucas Exact date unknown
WAPOL receive a telephone call from Mr Lucas saying “Catch me if you can mother f**ker.”
4 Commonwealth of Australia v Tsuro, above n 3, at [33].
19 October 2016
Department of Immigration affirm to WAPOL that Mr Lucas left Australia to New Zealand on 21 September 2016
Charge
21 October 2016
Mr Lucas is charged with Aggravated Armed Robbery.
Australian warrant issued
8 December 2016
WAPOL issue an arrest warrant for Mr Lucas.
1 January 2017
Mr Oo pleads guilty to Aggravated Armed Robbery in relation to the offending. He is sentenced to four years and six months imprisonment.
Arrested and sentenced under New Zealand law
11 October 2017
Mr Lucas is arrested in respect of an Aggravated Robbery occurring on 20 September 2017 under New Zealand law.
Mr Lucas is
rendered unable to be extradited.
7 February 2018
Mr Lucas is sentenced to two years and three months imprisonment in respect of the Aggravated Robbery charge.
8 February 2019
Mr Lucas granted parole.
3 October 2019
Mr Lucas recalled and remanded in custody.
7 July 2020
Mr Lucas’s parole period concludes after being released on parole on 8 January 2020.
Extradition proceedings commenced
July 2020
WAPOL re-commence extradition proceedings.
COVID-19
Extradition proceedings rendered not practicable
August 2020
19 October 2020
Early 2021
COVID-19 restrictions including border closures are in full force, alongside a total ban on WAPOL officers travelling but for life-threatening situations. The extradition proceedings are paused.
Leroy Twanda Tsuro changes his name by statutory declaration to Leroy Lucas.
Mr Lucas travels to Melbourne but is returned to New Zealand and declined entry.
31 July 2022 New Zealand’s international border opens to all visitors. Preparation for
extradition request
September 2022
WAPOL receive approval to seek the extradition of Mr Lucas. WAPOL re-commence extradition process.
11 April 2023
Following receiving written approval from WAPOL Commissioner of Police, Col Blanch, an application is submitted to the Department of Home Affairs (DHA) Criminal Justice Program for a CJEV for Mr Lucas.
23 June 2023
DHA granted a CJEV for Mr Lucas.
9 November 2023
The officer in charge of the investigation, Detective Sergeant Brendan O’Keefe, swears an affidavit in support of an application for extradition, setting out the allegations against Mr Lucas and the procedure leading up to the warrant issued for Mr Lucas’s arrest.
The bundle of documents filed in support of extradition by the Commonwealth of Australia is authenticated by Sandra De Maio, a Magistrate in Western Australia.
Extradition request
December 2023 /
January 2024
The extradition request is made to New Zealand in relation to Mr Lucas. The original sworn request is delivered to the NZ Police Liaison Officer in Sydney.
Endorsement of Australian warrant to arrest
12 January 2024
The Crown Solicitor at Auckland is instructed to prepare and appear on extradition proceedings.
19 January 2024
An ex parte application for the warrant to arrest issued in New South Wales to be endorsed by a New Zealand Court is filed.
19 January 2024
The warrant is endorsed by Judge D Sharp in the Auckland District Court.
Arrest in
New Zealand
14 February 2024
Mr Lucas is arrested on the warrant.
[4] Mr Lucas argued his surrender would be oppressive. Mr Lucas emphasised his age; the passage of time since the alleged offending; and his personal circumstances.
[5] The Judge considered the charge relatively serious. She found Mr Lucas had contributed to the delay by (a) fleeing Australia and (b) committing a criminal offence here in New Zealand. Her Honour concluded:5
The delay in this case is neither extreme nor entirely due to the fault of the Australian authorities. There are no factors that take Mr Lucas’s circumstances out of the ordinary such that surrender should be refused. There is no evidence before the Court that the passage of time generates some form of prejudice towards Mr Lucas having regard to the circumstances of the case. Nor is there any evidence to demonstrate that due to his age at the time of the offending Mr Lucas would have been treated differently had he been tried closer to the time of the alleged offending than he will be if he is tried now. Moreover, he has contributed in part to the delay. He has not demonstrated that he has moved from childhood to adulthood or that he has a new and settled life, to the extent that oppression would arise if the application was granted.
[6] The Judge, therefore, found Mr Lucas eligible for surrender.
The case for Mr Lucas
[7] On behalf of Mr Lucas, Mr Jubal identified three points of law. In substance, these reduce to a single point: the Judge erred in finding surrender would not be oppressive given Mr Lucas’s age and personal circumstances, in combination with the delay and its causes.
[8] Mr Jubal relies on the evidence from and on behalf of Mr Lucas in the District Court. In very short, this evidence suggests Mr Lucas has turned his life around since departing Australia, and extradition may endanger his apparent rehabilitation. Mr Jubal’s written submissions make the point this way:6
10.20The Appellant had recently turned 18 years old at the time of the alleged offending. He falls into the ‘youth’ category – allowing for
5 Commonwealth of Australia v Tsuro, above n 3, at [45].
6 Footnotes omitted.
his personal change and relationship development from childhood to adulthood to be specifically emphasised – as was the case in BW.
10.21Though his opposition is not bolstered to the exact extent by the period of delay in BW, the evidence before the Court demonstrates that the Appellant has engaged in numerous, productive bouts of employment and has formed meaningful, positive relationships in his life since his release from custody.
10.22It is respectfully submitted, due to the extensive time delay, the Appellant has been able to assimilate in New Zealand; forming meaningful and positive relationships in New Zealand.
10.23With reference to the factors outlined by Ellis J in paragraph [42] of BW, it is further submitted that the Appellant faces a similar prospect of extradition being materially disruptive, if not destroying, the relationships and life he has formed through his growth from childhood to adulthood.
10.24The Appellant was notably younger than BW at the respective times of the alleged offending. Accordingly, greater emphasis from Ellis J’s youth-driven analysis ought to be applied to the Appellant’s circumstances.
10.25It would be oppressive to surrender the Appellant.
[9] The case referred to by Mr Jubal — BW v Commonwealth of Australia — I say more about shortly.7
[10] In relation to the delay and its causes, Mr Jubal contends:8
10.13For the relevant time delay to progress to the next step of determining whether it would be oppressive to surrender the individual, it must fall under the category of “unexplained” and “inexcusably dilatory”.
10.14The period of delay required to be measured under s 8(1)(c) of the Act runs from the time that has passed since the offence is alleged to have been committed (5 September 2016) until the point the individual is liable to surrender (19 January 2024).
10.15It is respectfully submitted that Judge Manuel erred by finding that the delay in this matter was not excessive. Such a finding was based on the interpretation of the Appellant’s conduct and with comparison to the delays in various other cases.
10.16The Appellant submits:
7 BW v Commonwealth of Australia [2023] NZHC 1587. Mr Jubal acknowledges this decision was overturned by the Court of Appeal in Commonwealth of Australia v BW, above n 2. However, he contends its core reasoning remains valid, as to which see [11]–[15].
8 Footnotes omitted.
(a)One’s term of imprisonment or restrictions imposed by COVID-19 does not suspend the running of time for the purposes of s 8(1)(c) of the Act.
(b)The Australian authorities, throughout the Appellant’s custodial sentence in New Zealand, would have been aware of the Appellant’s whereabouts and could have commenced the extradition process following his release. No reasons have been provided as to why this did not occur.
(c)The Appellant, having gone to Australia in 2021 and being turned back at customs while the Australian warrant was active, was neither apprehended nor taken into custody.
(d)The Appellant’s delay of 7 years and 4 months falls close to the realm of other cases, where the Court has held a period of 8 years was unexplained and inexcusably dilatory, as well as a period of 7 years.
(e)The Appellant has made no attempt to conceal his whereabouts.
(f)The Appellant did not ‘flee’ the jurisdiction.
10.17There is a dearth of evidence to suggest that the delay in this matter was due to the actions of any other party other than the Australian authorities. Therefore, this time delay falls under the category of unexplained an inexcusably dilatory.
Analysis
[11] In BW, the defendant allegedly committed a serious assault in Western Australia in late 2014. He was then 23. Several years later, the Director of Public Prosecutions (for Western Australia) applied to extradite BW from New Zealand. BW had come here in the intervening period, albeit not to avoid the charge. Indeed, BW had returned to Australia several times without incident. BW was arrested by New Zealand Police in late 2022. In early 2023, the District Court concluded BW was eligible for surrender.9 Ellis J concluded otherwise on the basis the eight-year delay, in combination with BW’s personal circumstances and those of his family, meant surrender was oppressive.10 BW had gained employment, entered a stable relationship, and had a child. BW was the family’s breadwinner and had settled here. Australia appealed.
9 Commonwealth of Australia v [BW] [2023] NZDC 5941.
10 BW v Commonwealth of Australia, above n 7.
[12] The Court of Appeal observed:11
… the threshold for oppression is high. The onus is on the person resisting extradition to establish either unjustness or oppression on the balance of probabilities.
Extradition may be oppressive if the requesting state has been “‘inexcusably dilatory’ in bringing the offender to justice”. “Prosecutorial delay, therefore, may in borderline cases tip the balance in favour of a finding of oppression, but it should not be overemphasised.” The requesting state will however usually be in a better position to assess the delays caused by its authorities and grant an appropriate remedy.
Finally, severe disruption of families is a natural consequence of extradition and by itself is unlikely to constitute oppression. However, the interests of a child whose life will be severely impacted through the extradition of their parent is a factor that can be a relevant consideration when giving consideration as to whether it would be oppressive to extradite the parent.
[13] The Court acknowledged the factors identified by Ellis J, including, as will be apparent from the observations above, the interests of BW’s child, as relevant to the question of oppression. So too the “extraordinary four-year delay” on the part of the Director of Public Prosecutions.12 However, the Court of Appeal said these factors needed to be considered against the seriousness of the alleged offence; the “trust and confidence” attaching to Australia’s criminal justice system;13 the close and trusting relationship between the two countries; and attendant “high degree of comity”.14
[14] “By the narrowest of margins”,15 the Court held “the principle of comity and the seriousness of BW’s alleged offending”16 outweighed the factors treated by Ellis J as decisive. Consequently, the Court of Appeal held it was not oppressive for BW to be extradited despite the extraordinary delay, BW’s personal circumstances, and those of his family.17
[15] Against this background, the “youth-driven analysis” advanced by Mr Jubal is awkward. The Court of Appeal’s decision is clear — particularly when read alongside the High Court decision — that assessing a case through the prism of youth, or any
11 Commonwealth of Australia v BW [2025] NZCA 8 at [26]–[28] (footnotes omitted).
12 At [58].
13 At [54].
14 At [55].
15 At [65].
16 At [65].
17 At [65].
other prism for that matter, is not the correct approach. Rather, totality of circumstance must be evaluated in determining whether surrender would be oppressive, a high threshold.
[16] It follows Mr Lucas’s young age at the time of the alleged offending — he had just turned 18 — and his apparent rehabilitation are relevant but not necessarily decisive considerations. While on this topic, I note Mr Lucas’s personal circumstances are rather different from BW’s. Mr Lucas does not refer to having a partner; there is no suggestion he has a child. So, while Mr Lucas can point to rehabilitative efforts following his incarceration in New Zealand, hence to “no longer [being] the same person” as he was in Australia, no issue arises of the potential dislocation of family, or of Mr Lucas not being able to provide for his family because of extradition.
[17] In relation to delay, I am unable to accept Mr Jubal’s submission of error: there is no unexplained delay or dilatory conduct in this case. Mr Lucas’s commission of an aggravated robbery here, and his corresponding sentence, precluded extradition from 11 October 2017, when he was arrested, until 7 July 2020, when Mr Lucas’s parole concluded. The pandemic then intervened. Travel restrictions in connection with it precluded Mr Lucas’s extradition between August 2020 and 31 July 2022. Delay thereafter is commensurate with the nature of extradition proceedings, particularly in the aftermath of a global pandemic.
[18] I am also unable to accept Mr Jubal’s submission the Judge erred in relation to apparent flight. Mr Lucas left Australia the day after his arrest (he was released post-arrest), and there is evidence he subsequently telephoned Western Australia Police and said, “Catch me if you can …”. That Mr Lucas denies fleeing and making that call did not prevent the Judge from drawing an inference of flight given the evidence to support that conclusion. Relatedly, Mr Lucas’s departure from Australia contributed to the delay discussed above. On one view of the case, it largely caused it.
[19] Finally, the other factors identified by the Court of Appeal in BW — the seriousness of the alleged offending; the “trust and confidence” attaching to
Australia’s criminal justice system;18 the close and trusting relationship between the two countries; and the “high degree of comity”19 between Australia and New Zealand
— all told against a conclusion of oppression despite Mr Lucas’s age and apparent rehabilitation.
[20] It follows no error has been demonstrated in relation to the Judge’s decision surrender would not be oppressive.
Result
[21]The determination of the District Court is confirmed.20
[22]The appeal is dismissed.
……………………………..
Downs J
18 Commonwealth of Australia v BW, above n 2, at [54].
19 At [55].
20 Extradition Act, s 72(1)(a).
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