McGrath v Minister of Justice
[2014] NZHC 3279
•17 December 2014
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIM(S) OR COMPLAINANT(S) LOCATED IN NEW ZEALAND OR AUSTRALIA. SUPPRESSION ORDERS MADE BY THE DISTRICT COURT REMAIN IN PLACE, PENDING FURTHER ORDER OF THAT COURT
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-580 [2014] NZHC 3279
BETWEEN BERNARD KEVIN MCGRATH
Plaintiff
AND
THE MINISTER OF JUSTICE Defendant
Hearing: 1 December 2014 Appearances:
P N Allan for Plaintiff
M J Lillico and C J Hurd for DefendantJudgment:
17 December 2014
JUDGMENT OF MANDER J
[1] The Commonwealth of Australia seeks the extradition of the plaintiff, Mr Bernard McGrath, to face trial on 250 charges of sexual offending. The offences are alleged to have been committed against 35 complainants whilst Mr McGrath was employed […] in Australia, between 1977 and 1986. The complaints were made between 2001 and 2007. Mr McGrath is a New Zealand citizen.
[2] Requests by Australia for extradition are governed by Part 4 of the Extradition Act 1999 (the Act). Broadly, this part of the Act provides for a simplified extradition procedure, reflecting the high degree of comity between New Zealand
and Australia.1 Part 4 is designed to provide a streamlined procedure for extradition,
1 Countries must be designated by Order in Council: Extradition Act 1999, s 40. See for example the Extradition (United Kingdom and Pitcairn Islands) Order 2003 which brings within the rubric of Part 4 the “United Kingdom of Great Britain and Northern Ireland” and the “British Overseas Territory of the Pitcairn, Henderson, Ducie and Oeno Islands”.
MCGRATH v THE MINISTER OF JUSTICE [2014] NZHC 3279 [17 December 2014]
whereby a person will be eligible for surrender if a warrant for the arrest of the person issued in a designated country complies with the requirements of the Act. If the Court is satisfied that the person is an extraditable person in relation to the extradition country and the offence is an extradition offence in relation to that extradition country, the person is eligible for surrender.2
Procedural background
[3] In November 2012, Judge Farish endorsed the Australian warrants for the arrest of Mr McGrath, and in June the following year found Mr McGrath eligible for surrender under s 45 of the Act.3 In September 2013, the matter was referred back to the District Court as a result of an appeal by Mr McGrath regarding Judge Farish’s assessment of her discretion under s 48(4) to refer the case to the Minister of Justice (the Minister) because of compelling or extraordinary circumstances relating to the affected person.4 Whata J was concerned that Judge Farish may have unduly restricted her analysis of Mr McGrath’s personal circumstances by reference to the Australian judicial system.5
[4] In April 2014, Judge Farish delivered her decision regarding the issue of whether Mr McGrath’s case should be referred to the Minister.6 It appeared to the District Court that because there were compelling or extraordinary circumstances it would be unjust or oppressive to surrender Mr McGrath, and she exercised her discretion to refer the matter to the Minister.
[5] On 18 August 2014, having reviewed the mandatory and discretionary restrictions on surrender in relation to the extradition request, the Minister, the Honourable Judith Collins, decided that none of those restrictions applied in Mr McGrath’s case and that he should be surrendered to the Commonwealth of Australia. It is in respect of that decision which this application for judicial review
lies.
2 Extradition Act 1999, s 41; United States of America v Dotcom [2012] NZHC 2076 at [7].
3 The Commonwealth of Australia v McGrath DC Christchurch CRI-2012-009-13556, 12 June
2013 [Surrender decision].
4 McGrath v The Commonwealth of Australia [2013] NZHC 2348 [Surrender appeal decision].
5 At [38]-[41].
6 The Commonwealth of Australia v McGrath DC Christchurch CRI-2012-009-13556, 8 April
2014 [Referral decision].
The law
[6] Where a case is referred to the Minister, he or she must determine, in accordance with the grounds set out subs (2) to (4) of s 30, whether the person is to be surrendered.7 Section 30(3) provides, so far as it is relevant to the present case, as follows:
(3) The Minister may determine that the person is not to be surrendered if –
…
(d) …, it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or
…
[7] While the Minister’s decision had regard to all the grounds set out in subs (2) to (4) of s 30, it is this ground under s 30(3)(d) which Mr McGrath relied upon and is the focus of his challenge to the Minister’s decision that he be surrendered.
The challenge to the Minister’s decision
[8] Mr McGrath challenges the Minister’s decision under a number of headings.
They are as follows:
(a) Apparent bias.
(b)The Minister breached principles of natural justice in making her decision.
(c) Material errors of fact were made by the Minister. (d) The Minister’s decision constituted an error of law.
(e) The Minster’s decision was in all the circumstances unreasonable.
7 Extradition Act 1999, s 49(1).
(f) The Minister “abdicated her responsibilities”.
[9] In the course of oral argument, Mr Allan on behalf of Mr McGrath acknowledged that the challenges based upon error of law and unreasonableness were substantially the same.
Bias
[10] Mr McGrath submitted that there have been breaches of suppression orders relating to the extradition proceedings committed by Mr Cameron Slater, an individual with whom the Minister is friendly, and to whom Mr McGrath in his pleading alleged the Minister had previously provided information.8 He contends that in those circumstances an appearance of bias arises on the basis that a fair- minded lay observer might reasonably apprehend that the Minister might not bring
an impartial mind to her decision. Mr McGrath relies upon recent publicity
regarding the Minister’s association or relationship with Mr Slater.
[11] Mr McGrath in his affidavit referred to an incident on an unspecified date when he and an associate were accosted by an unknown person in a public place. A photograph was taken of Mr McGrath, which he identified as one posted on a blog operated by Mr Slater. The blog referred to him as a paedophile and contained other matters that breached suppression orders. Mr McGrath expressed concern that Mr Slater may have given information about him to the Minister.
[12] In response, the Minister acknowledged that Mr Slater was a family friend, which was a matter of public knowledge, and that she was aware of alleged breaches of suppression orders as they were identified in Mr McGrath’s own submissions to her. Those breaches however were referred to only generically as having been committed by both individuals and the media. It was submitted that the matters relied upon provided an insufficient basis upon which to allege bias, or the
appearance of bias.
8 Mr McGrath in his statement of claim did not name Mr Slater as the individual who breached suppression orders and with whom the Minister has an association. In his submissions and the affidavit filed in support of his application, he identifies Mr Slater as this person.
The test for bias
[13] Mr McGrath’s claim raises the issue of what is the threshold for bias that a member of the Executive must exhibit before there is a breach of natural justice. Mr McGrath submitted that a Minister exercising a statutory decision-making power in the circumstances of the present case will be disqualified from making a decision where there is apparent bias.
[14] The Minister submitted that apparent bias is not the appropriate standard to be applied. Mr Lillico on behalf of the Minister submitted that Ministers will necessarily approach decisions influenced by policy and political considerations.9
The test to be applied is not one of apparent bias but actual bias. The party alleging disqualification would need to establish that the decision-maker was not open to persuasion and did not address themselves to the particular criteria but simply went through the motions. It would need to be proven that the decision-maker approached the decision-making exercise with a closed mind.10
[15] There is no absolute standard to which a decision-maker must adhere.11 The standard of impartiality required of a decision-maker is likely to turn in any given circumstance on the need to achieve the dual aims of accuracy in public decision- making and the need for public confidence in the decision-making process. It follows therefore, in the context of judicial decisions, that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.12
[16] In Zaoui v Greig,13 it was not disputed that because of the nature of the task of the Inspector-General of Intelligence to review a certificate issued by the Director
9 Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR
1474 at [130] and [131].
10 Lower Hutt City Council v Bank [1974] 1 NZLR 545 (CA) at 549-550; Friends of Turitea
Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661; Wakatu Incorporation v Tasman District Council HC Nelson CIV-2007-442-205, 11 October 2007; Butler v Attorney-General HC New Plymouth CIV-2004-443-332, 19 August 2004; Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32; R v Hereford and Worcester City Council, ex parte Wellington Parish Council [1996] JPL 573; Newfoundland Telephone Co Ltd v
Board of Commissioners of Public Utilities [1992] 1 SCR 623.
11 See, for example, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, [2000] 1 All ER
65 (CA) at [25], approved by the New Zealand Court of Appeal in Man O’War Station Ltd v
Auckland City Council [2001] 1 NZLR 552 (CA) at [17].
12 R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259.
13 Zaoui v Greig HC Auckland CIV-2004-404-317, 31 March 2004.
of Security that Mr Zaoui was a security risk, the test was one of apparent bias. Salmon and Harrison JJ observed that it may have been appropriate in the circumstances of that case to hold the Inspector-General to a higher “standard” of impartiality given Mr Zaoui’s reliance on the office holder’s “objectivity and fairness”, and the high stakes to Mr Zaoui of an adverse decision.14 Mr Allan on behalf of Mr McGrath did not argue that such an approach applied in the present circumstances, but the case is illustrative of a situation where office holders will be held to a similar, if not greater, standard than those sitting in a judicial capacity.
[17] In Moxon v The Casino Authority,15 Fisher J sought to distinguish the standard of impartiality required by decision makers in the following terms:
[48] Subject to counter-indications in the statute, and any other qualifications such as jury confidentiality, relatively little predisposition or extraneous influence will be tolerated where the decision-maker is a court, tribunal or similar body operating in a formal adversarial setting, the determination requires the application of a legally dictated result once facts are found, the decision impacts upon particular individuals rather than the community at large, and the impact upon those individuals is serious, particularly if involving human and civil rights and freedoms. In cases of that nature the Courts are likely to subject the decision to the “hard look” required in order to safeguard the rights and interests at stake (as in R v Gough and Webb v The Queen both supra).
[49] More freedom to manoeuvre seems intended where the decision- maker is a democratically elected body which will inevitably be influenced by political considerations (DeSmith para 12-043 pp 546 and, by analogy with unreasonableness, Wellington City Council & Waitakere City Council, infra), the decision-maker is intended to form its own policies, particularly where it can be expected that one policy will be applied consistently across a series of individual applications (Turner v Allison, supra), the challenged aspect of the decision did not involve the application of tightly controlled legal consequences to facts once found, eligibility for appointment and hearing methodology suggest that its members were intended to draw upon their own prior views, experience or expertise, and/or the opportunity to be heard is limited or informal. In such cases intervention for bias or predetermination will usually be justified only where the decision-maker entered upon the hearing with a closed mind, that is to say the decision- maker was not amenable to proper argument or was unwilling to consider the case on its individual merits (see New Zealand Public Service; Turner v Allison; Hamilton City Council and Royal Commission on Thomas, supra).
14 At [46] and [107], referring to R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All
ER 139 (CA).
15 Moxon v The Casino Control Authority HC Hamilton M324/99, 24 May 2000.
[18] It appears from that analysis that Mr McGrath’s position before the Minister has greater similarities with the first type of decision rather than the latter. It is not however necessary for me to arrive at any concluded view as to the test to be applied. Mr McGrath does not argue and, indeed, has provided no evidential basis to suggest actual bias on the part of the Minister. His argument is premised on the appearance of bias. In that regard, he seeks the application of the test of the fair- minded lay observer who might reasonably apprehend that the decision-maker has not brought an impartial mind to the resolution of the question required to be
decided.16 The test is an objective one, based on reasonableness, involving not only
the reasonable and fair-minded observer but an informed one. The subjective sensitivities of an individual engaged in the dispute are not relevant.17
[19] In the present case, Mr McGrath relies on a friendship or acquaintance relationship giving rise to apparent bias. In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, Blanchard J stated: 18
… it is not enough merely to identify some relationship. The party alleging apparent bias must also articulate a logical connection between the identified relationship and the “feared deviation” from the course of deciding the appeal on its merits.
[20] While most of the cases, including Saxmere, focused on the relationship between the party and the decision-maker in terms of potential disqualification,19 in the context of the present case it remains necessary for there to be a logical connection between the identified relationship and the “feared deviation” from
deciding the issue on its merits.
16 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [4] per Blanchard, Tipping, McGrath and Anderson JJ. In New Zealand see too Sisson v Canterbury District Law Society [2011] NZCA 55, [2011] NZAR 340 at [21]; Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62]; Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [96]. In the United Kingdom refer Magill v Porter [2001] UKHL 67, [2002] 2 AC 357 at [103]; Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187 at [20]–[21].
17 EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA) at 150.
18 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35, at
[20].
19 See Sisson v Canterbury District Law Society [2011] NZCA 55, [2011] NZAR 340 at [20]; R v
Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC
119 (HL) at 133; Findlay v Slovak HC Hamilton CIV-2007-419-164, 19 February 2008 at [46].
[21] The basis upon which the question of bias has been raised is that a family friend of the Minister is alleged to have breached a suppression order in respect of Mr McGrath’s extradition proceedings and demonstrated animus towards him in a blog that he has written. I observe “alleged” breach because I have been pointed to no evidence of any actual determination that such a breach occurred, although I proceed on the basis, for the purposes of the argument, that there has been such breach. Mr McGrath does not point to any statement or view previously expressed by the Minister about Mr McGrath. The spectre of potential communication between the Minister and Mr Slater about his case could only reasonably be categorised as a matter of unfounded speculation.
[22] Applying the test contended for by Mr McGrath of apparent bias, I am not satisfied that the fair-minded and reasonable observer would consider that because a family friend of the Minister’s has, in breach of a suppression order, expressed a view about Mr McGrath, she therefore is disqualified from making a decision in her official capacity as the Minister responsible. The argument in support of the submission of apparent bias was not advanced beyond that contention.
Natural justice
[23] The Minister does not dispute that she has an obligation to act in accordance with the principles of natural justice because of the impact of her decision on Mr McGrath and the requirements of the New Zealand Bill of Rights Act 1990 (NZBORA), s 27 in particular.
[24] Mr McGrath relies on two alleged breaches of natural justice. Firstly, that a ministerial briefing paper provided to the Minister to assist her in making her decision was not provided to Mr McGrath prior to the Minister’s decision. Secondly, that the Minister breached her obligations because she did not seek information requested by Mr McGrath which he submits was relevant to her decision and unlawfully restricted his ability to make full and proper submissions.
[25] The requirements of fairness and natural justice are flexible and are to be calibrated by reference to the applicable statutory setting in which the decision is
required to be made.20 They depend on the circumstances of each particular case and the subject matter under consideration.21 The requirement in s 27 NZBORA is premised on the principles of natural justice having varying application in different circumstances.22
[26] After the matter was referred to the Minister by the District Court, she invited Mr McGrath to provide submissions and any evidence that he wished her to consider. Mr McGrath made submissions in six letters sent to either the Minister or the Ministry of Justice and two folders containing a large number of documents, together with two large flow charts. Mr McGrath’s counsel made a formal seven page written submission on his behalf. The Minister received written advice and recommendations from her Ministry regarding the statutory grounds upon which she was required to decide whether Mr McGrath should be surrendered to Australia.
[27] Clearly, Mr McGrath was afforded the opportunity to state his case and bring to the attention of the Minister any matters that he wished her to take into account in making her decision.
[28] Mr McGrath’s objection to the Minister being provided with a briefing paper by her own Ministry which was not referred to him for comment is groundless. The Minister is entitled to seek the advice of her officials and her own Ministry’s assistance regarding the decision she was required to make. There was no requirement for the briefing paper, which itself constitutes legal advice to the Minister, to be disclosed to Mr McGrath for his comment, nor, given the nature of the process, a requirement that he be given the opportunity to be heard on its contents.
[29] Mr McGrath submitted that the Minister should have obtained further information. The information sought by Mr McGrath included reports by commissions of inquiry regarding child sexual abuse and its investigation in
Australia, transcripts of evidence given to these inquiries by an Australian police
20 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132.
21 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718; Daganayasi v
Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
22 See Geoffrey Palmer A Bill of Rights for New Zealand: A White Paper [1984-1985] I AJHR A6.;
Peters v Collinge [1993] 2 NZLR 554 (HC) at 566.
officer involved in Mr McGrath’s case, exhibits and witness statements. The apparent expectation of Mr McGrath was that the Minister would undertake some type of inquiry or examination into the process leading to the investigation and charging of Mr McGrath and the subsequent application for extradition by the Australian authorities.
[30] I accept the Minister’s submission that such an exercise was not necessary to make a proper assessment of the relevant grounds, set out in s 30 of the Act, as to whether Mr McGrath should be surrendered. The nature and scope of the decision the Minister was required to make is far removed from the type of analysis of evidence and inquiry into the motivation of Australian authorities, individual police officers, or the complainants, which Mr McGrath was essentially asking the Minister to undertake. I am satisfied that procedural fairness did not require the Minister to obtain further information for herself relating to the charges Mr McGrath was facing.
[31] The Minister in her decision addressed requests made by Mr McGrath to obtain information. The Minister informed him that he had not explained how the information requested was relevant to the grounds she had to consider in making her decision. The Minister observed that any prejudice to Mr McGrath arising out of material errors in the Australian Police’s approach or information provided, particularly as it related to the timeframes of the police investigation, can be examined by the Australian Courts. In relation to Mr McGrath’s request for the complainants’ statements, the Minister noted the truncated process for dealing with extradition requests from Australia under Part 4 which does not require any assessment of the sufficiency of evidence, which again will be a matter for the Australian Courts.
[32] Before me, Mr McGrath did not address the reasons provided by the Minister to decline to obtain further information. The Minister’s approach does not admit of any error.
Material errors of fact
[33] Mr McGrath submitted that the Minister made material errors of fact in her decision and that the following facts “were incontrovertible”:
he does not have family or other support in Australia;
he does not have a guarantee of financial support in Australia; and
he has no guarantee of sufficient funding by way of legal aid in order to properly defend the charges.
[34] Mr McGrath submitted that these particulars were accepted by Judge Farish. He submitted therefore that there was no need to provide the Minister with any further particulars in this regard because those findings had been accepted by Judge Farish in the District Court. In that regard, I note the extent of Judge Farish’s observations, being the “arduous, expensive and difficult exercise” that extradition involved for a person the subject of it, and that Mr McGrath “would be subject to little or no support” in Australia.
[35] The Minister in her decision acknowledged the submission made on Mr McGrath’s behalf to her, that “it should not be forgotten that the respondent has no support in Australia, no guarantee of income to support him, and no guarantee that sufficient legal aid would be available to properly defend the charges as they are currently framed”. The Minister also noted Mr McGrath’s representation that extradition would be “oppressive” because of the changes in his circumstances, and letters of support provided […] and his present involvement in a tea plantation in Sri Lanka.
[36] In assessing whether any of the grounds in s 30(2)-(4) of the Act were made out, the Minister also made reference to having taken into account the reasons for Judge Farish’s referral, in addition to the submissions and supporting documents provided by Mr McGrath himself and his counsel. The Minister made specific reference to the submission that there is a lack of guarantee that sufficient legal aid will be made available to mount a proper defence.
[37] In response to this part of the challenge to the Minister’s decision, Mr Lillico on behalf of the Minister submitted that not every error of fact will suffice to invalidate a decision. The factual error must be fundamental or pivotal to the
decision, or obviously material to mandatory considerations or a condition precedent.23 A clear mistake of established fact is required to be demonstrated, not a disagreement between possible views or a choice between two factual conclusions or opinions that are reasonably open.24 The Minister submitted that she made no reviewable errors of fact.
[38] The Minister made no findings as to whether Mr McGrath had family or other support in Australia, which appears to be the identified error sought to be established by Mr McGrath in his pleadings. Rather, the Minister observed that “there was no evidence showing Mr McGrath was currently reliant on family or other support in New Zealand that would not be available in Australia”. The Minister made no finding regarding financial support available to Mr McGrath in Australia, which would constitute a material error of fact.
[39] While expressly acknowledging the submission made on Mr McGrath’s behalf regarding the sufficiency of legal aid in Australia, the Minister made no finding as to whether that submission was correct. The Minister stated that she was satisfied that Australian jurisdictions make proper provision for legal aid for persons who cannot afford a lawyer themselves.
[40] The issue of the adequacy of state funded legal advice and representation is likely to be a matter of opinion and varying assessment. The existence of differing views cannot of itself give rise to reviewable error. I also note that Judge Farish made no determination regarding the adequacy of legal aid which Mr McGrath may receive in Australia. I do not accept the Minister was under any obligation to make inquiries of Australia or seek guarantees from that jurisdiction as to the details of the legal aid support which would be granted to Mr McGrath in respect of his case.
[41] Mr McGrath referred to individuals who have provided him with support in
New Zealand who will not be available to him in Australia. He advises that he is dependent on his New Zealand superannuation, and has expressed concern regarding
23 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [92]; New Zealand Fishing Industry
Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 522.
24 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries, above n
23.
his continued eligibility for New Zealand superannuation while he remains in Australia. Mr Lillico on behalf of the Minister observed that some of this material, which forms part of Mr McGrath’s affidavit in support of his application for judicial review, was not part of Mr McGrath’s submission to the Minister. The Minster refers to Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd25 as authority for the proposition that new opinion evidence not presented to the decision- maker can seldom help to demonstrate that a decision on what is essentially an evaluation exercise was unreasonable when made.
[42] In terms of the wider submission made on behalf of Mr McGrath that he would have little or no support in Australia, as was concluded by Judge Farish, I have found that the Minister made no contrary finding, only that it remained unclear as to what support that he was presently reliant upon in New Zealand would not be able to be extended to him in Australia. Under the heading “Emotional Support”, Mr McGrath in his affidavit referred to his ability, while facing trial in Australia, to communicate via telephone or email with people who have extended support to him in New Zealand, but that such support would not, in his words, “be the same”. Clearly, in Australia, Mr McGrath would lose the close support of friends and family that comes with the physical proximity of such associations, but it is not clear, and indeed is a matter of subjective assessment, as to the degree to which a person may be reliant on such support. I am bound to observe that extradition of a New Zealand citizen to another jurisdiction, including Australia, is likely to involve the potential loss of support that may otherwise have been enjoyed by a person in their home jurisdiction; such is the nature of the extradition process.
[43] That a person the subject of extradition will not have the type of support in the extradition country that would otherwise be available to him or her in their home country is unlikely to be an influential factor in assessing whether compelling or extraordinary circumstances exist. In that regard, I note the observation of the Court
of Appeal in Mailley v District Court at North Shore, that “extraordinary” means that
25 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR
650,658.
the circumstances must be out of the ordinary, unusual, uncommon or striking, while
“compelling” denotes very persuasive or very strong.26
[44] In relation to the issue of legal aid, I accept the Minister’s submission that she is entitled to have regard to the principle of comity, particularly as it relates to Australia, a designated country within the meaning of Part 4, with strong similarities to the New Zealand legal system. In particular however, the Minister was entitled to conclude that Australia would make adequate provision for state-funded legal assistance, and the recognition by its Courts of the centrality of the right to counsel
in criminal trials.27
Mistake of law/unreasonableness
[45] Mr McGrath submitted that the Minister erred in law in her assessment of his case not constituting extraordinary or compelling circumstances. This was essentially a submission that the Minister’s decision was unreasonable.
[46] In assessing this challenge to the Minister’s decision, it is necessary to examine the factual background in more detail and the standard of unreasonableness to be applied.
[47] The charges on which Mr McGrath is liable to extradition are based on allegations made by former pupils […] between 1977 and 1986. The pupils made complaints between 2001 and 2007.
[48] It is not disputed that there were delays in the investigation of these complaints by the responsible authorities. Prosecutorial delay is said to have largely resulted from resourcing difficulties and the fact that the complainants resided in different states in Australia. A taskforce was commissioned to deal with the complaints in 2010. In November 2011, application for Mr McGrath’s extradition to Australia was made.
[49] […]
26 Mailley v District Court at North Shore [2013] NZCA 266 at [62].
27 Dietrich v R [1992] HCA 57, (1992) 177 CLR 292.
[50] […]
[51] […]
[52] In respect of the current charges, the Australian authorities declined to make an application for extradition in 2001. At that stage, there was only one complaint against the respondent. Over the period of the next four to five years however, eight more complainants came forward. As already mentioned, there were delays in investigating these complaints before a designated taskforce was commissioned in
2010, which led to the extradition application in 2011.
Intensity of review
[53] Mr McGrath submitted that, because of the nature and subject matter of the decision, the level of scrutiny required of the Minister’s decision requires a “hard- look”. I have already referred to the observations of Fisher J in Moxon,28 that decisions which impact upon particular persons, rather than the community at large, and which involve an individual’s civil rights and freedoms are likely to attract a greater level of scrutiny. A “hard-look” review requires a close and careful review of relevant policies and factors which bear upon the decision. The greater the interference with rights, the greater the scrutiny.29
[54] The Minister submitted however that the test to be applied remains one of unreasonableness in the orthodox sense as that term is ordinarily applied in cases of judicial review. A decision is required to be so unreasonable that no reasonable decision-maker, properly directing themselves in law and appraised of all relevant circumstances could have made it.30 Mr Lillico on behalf of the Minister emphasised the general principle that inquiring into a foreign Court’s process offends
the principle of international comity and is contrary to the assumptions fundamental
28 Moxon v The Casino Control Authority HC Hamilton M324/99, 24 May 2000 at [48].
29 Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA) at [212]; Z v Director of Proceedings HC Wellington CIV-2007-485-2631, 3 October 2008 at [36]; Attorney- General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at [274].
30 Nichols v Health and Disability Commissioner [1997] NZAR 351 (HC) at 369.
to extradition, citing the statement of the Supreme Court of Canada in Republic of
Argentina v Mellino:31
The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition and our courts have over many years made it abundantly clear that an extradition judge should not give effect to any suggestion that the proceedings are oppressive or that the fugitive will not be given a fair trial or give proper weight to the evidence. In truth, the assumption by an extradition judge that delay or other defences would not be given appropriate consideration by the foreign court is even more offensive than the assumption of control over the actions of foreign diplomatic and prosecutorial officials. It amounts to a serious adverse reflection not only on a foreign government to whom Canada has a treaty obligation but on its judicial authorities concerning matters that are exclusively within their competence.
[55] While it is to be acknowledged that the effect of any extradition may involve the Executive allowing one of its citizens to be subjected to the coercive supervision of another jurisdiction, and therefore involves issues of individual liberty and rights, in the present case, the referral to the Minister to make a final decision on surrender was premised on the Court being otherwise satisfied that in “every other respect” the “grounds for making the surrender order existed”.32 Mr McGrath’s challenge is to the refusal by the Minister to exercise her discretion to decline extradition on personal and humanitarian grounds.
[56] The fact that Mr McGrath’s application is made under Part 4 of the Act cannot of itself provide a complete answer to the issue to be decided. The question being asked of the Minister is wider and must be exercised by reference to the merits of the personal grounds put forward. The principle of comity notwithstanding, the residual discretion under s 30(3)(d) of the Act, remains for the Minister. However, when examining both the standard of review to be applied to the Minister’s decision and the reasonableness of that decision, inevitably the nature and character of the Australian legal jurisdiction will inform the level of scrutiny required, and remains an important and relevant consideration when assessing whether the Minister’s
conclusion was reasonably available to her.
31 Republic of Argentina v Mellino [1987] 1 SCR 536 at [43]; cited with approval by Gendall J in
Bujak v Minister of Justice HC Wellington CIV-2009-485-2266, 18 November 2009 at [65].
32 Extradition Act 1999, section 48(4)(b).
[57] It is because of the standards and guarantees of the Australian criminal justice system that the streamlined approach to extradition is provided in Part 4 of the Act. Australia’s Part 4 status is premised on a view that the Australian system will not breach Mr McGrath’s rights and that he will have the benefit of the same type of protections which the New Zealand system affords to those the subject of its criminal justice system. It therefore follows that the type of “high stakes” decision impacting on an individual’s rights and freedoms are not to the fore to the degree that might otherwise have been the case should another extradition country have been involved. Even then the Minister’s consideration of whether a person is to be surrendered is to be considered against the overarching principle of international comity. Essentially, the Minister’s decision involved the assessment and exercise of a residual statutory discretion as to whether there were any personal factors or individual circumstances arising in Mr McGrath’s particular case, that appeared to the Minister to be so compelling or extraordinary as to render it unjust or oppressive to surrender Mr McGrath to Australia.
[58] In my assessment therefore the level of review need be no different from that which normally applies. The question for the Court is not whether the view taken by the Minister was right or wrong, but whether it was a decision which a reasonable Minister could take within the limits of reason. In assessing the grounds set out in subs (2) to (4) of s 30, competing relevant considerations were a matter of weight for the Minister.33
Was the Minister’s decision unreasonable?
[59] Essentially, Mr McGrath relied upon the same matters which were put before the District Court and largely formed the basis upon which Judge Farish exercised her discretion to refer the matter to the Minister for consideration. For completeness, I set them out as follows:
(a) […]
(b) […]
33 Lewis v Wilson & Horton above n 23.
(c) […]
(d) […]
(e) The likelihood of significant delay before any trial would be exacerbated if there are multiple defendants.
(f) Mr McGrath is not a young man.
(g)There must come at some stage some finality in relation to ongoing complaints.
(h) There has been significant and unexplained delay in relation to Mr
McGrath’s case.
(i)There is significant prejudice to a fair trial as a result of the delay, the lapse of time, publicity and breaches of suppression orders.
(j) Mr McGrath does not have family or other support in Australia.
(k) Mr McGrath does not have a guarantee of financial support in
Australia.
(l)Mr McGrath has no guarantee of sufficient funding in order to properly defend the charges.
[60] In response, it was submitted that all these points were considered by the Minister and given such weight as she saw fit. Mr McGrath’s submission does not identify any particular failure by the Minister to take into account any of these listed factors.
[61] The Minister in her decision acknowledged the factors relied upon by Mr McGrath and explicitly made reference to those which appeared to have been relied upon by Judge Farish in support of her referral. The Minister’s assessment was that none of those matters constituted extraordinary or compelling
circumstances that would render it unjust or oppressive to order Mr McGrath’s
surrender.
[62] In that regard, the Minister was entitled to take into account the ability of the Australian Court to address those factors which individually or cumulatively may constitute an abuse of its own process. The Minister did not simply apply the principle of comity. In her assessment, she considered that the Australian criminal justice system would be able to assess the issues of delay […].
[63] Similarly, issues of fair trial rights arising from media attention and the proper provision of legal aid are matters the Minister was entitled to have confidence the Australian jurisdiction was able to assess. Unsurprisingly, the Minister was able to express a level of comfort that there were necessary safeguards in place to ensure that Mr McGrath would be subject to a fair and proper trial process in Australia. I have already considered the Minister’s consideration of the issue of support for Mr McGrath in Australia.
[64] It was acknowledged by the Minister that Mr McGrath was not a young man, being 66 years of age, however she concluded there was no evidence that his health was poor or would impact on his ability to defend himself. Having considered these matters, the Minister concluded that it did not appear to her they constituted a compelling or extraordinary circumstance which would make it unjust or oppressive for Mr McGrath to be surrendered to Australia.
[65] On review, I have not been brought to the position where I can conclude that
the Minister’s decision was one that was not reasonably available to her.
Abdication of responsibility
[66] Under this final heading, Mr McGrath submitted that in rejecting the factors which in his submission would render it unjust and unfair for him to be surrendered, the only reason the Minister did not give them sufficient weight was because the Australian Courts would be able to assess such matters. Mr McGrath submitted that the safeguards within the statutory scheme eclipse principles of comity, and that the matters raised cannot be remedied simply because they could be raised in Australia
in support of an application for a stay. The potential availability of such a remedy in Australia, it was submitted, cannot justify the Minister refusing to exercise her discretion not to surrender.
[67] As I have already observed, the principle of comity cannot of itself divest the Minister of responsibility to examine the factors which may provide a basis for concluding there are compelling or extraordinary circumstances which would make it unjust or oppressive to surrender Mr McGrath to Australia. As Whata J observed, in the related context of the District Court’s determination to refer the case to the Minister, if the statutory test is made out and it does appear to the decision-maker that it would be unjust or oppressive to surrender the person, the fact that the
extradition country is a Part 4 jurisdiction does not overcome such a finding.34
[68] In making the assessment as to whether there appears to be compelling or extraordinary circumstances, it would however be quite artificial, if not unreal, for the decision-maker to ignore the context in which the various factors put forward are to be examined. In the case of Mr McGrath, it is against the background that the extradition is sought by Australia. Essentially, what is being put forward are reasons why he ought not be required to stand trial on the Australian charges. If he was to stand trial in New Zealand for such offending in such circumstances, the issues raised by Mr McGrath would be the subject of examination by the trial Court.
[69] The Minister is entitled, when considering whether it would be unjust or oppressive to surrender Mr McGrath to the Australian legal system, to take into account the fact that the Australian system is equipped to examine these issues. The factoring of that consideration by the Minister into her assessment was legitimate. This was not a situation where the Minister simply refused to consider the factors put forward by Mr McGrath. Whether such matters could make it unjust or oppressive to surrender him were to be examined in the context of whether Mr McGrath would be afforded the opportunity to raise such issues before the trial Court in Australia.
[70] In the circumstances of Mr McGrath’s extradition to Australia, the Minister concluded that the factors relied upon did not give rise to compelling or
34 McGrath v The Commonwealth of Australia [2013] NZHC 2348 at [38].
extraordinary circumstances that would make it unjust or oppressive. Such assessment does not amount to any “abdication of responsibility” but rather an appreciation by the Minister that as part of her assessment, a central feature of the proposed extradition was that it was to a Part 4 country where the matters raised by Mr McGrath would, as in this country, be required to be considered by the Australian trial Court seized of the prosecution.
Result
[71] I therefore conclude that the Minister made no reviewable error in making her decision that Mr McGrath be surrendered to the Commonwealth of Australia. The application for review is declined.
Solicitors:
Patient & Williams, Christchurch
Crown Law, Wellington
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