News

Decision Federal Court: Extradition Appeal – Review of a Brisbane Magistrate’s Decision – Arguments About Oppression – Delay

In NZ v Templeton [2017] FCA, a Federal Court review involved whether the Magistrate in Brisbane had erred in determining that the respondent should not be extradited. Ultimately his Honour found that the evidence of delay was extraordinary, but the gravity of the offences meant that he was not satisfied that the lengthy period that has elapsed since the offences were allegedly committed, or for any other reason, it would be unjust or oppressive to surrender the respondent.

According to his Honour Rangiah J: “The application for review of the Acting Magistrate’s order is brought under s 35(1)(b) of the Extradition Act. The first question is as to the nature of the review to be conducted by the Court.

Section 35(6)(d) provides that the Court shall review the order “by way of rehearing” and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate.

In Kenneally v New Zealand (1999) 91 FCR 292, the Full Court said at [4]:
Proceedings for review pursuant to s 35 of the Act are by way of rehearing de novo. 

As to what is meant by a “rehearing de novo”, in Heslehurst v Government of New Zealand [2000] FCA 1311, Branson J said:
27    …I understand their Honours to have meant thereby that the powers of the Court are not exercisable in the proceedings for review only where error by the magistrate can be demonstrated; rather the Court is to determine itself what order is appropriate to be made regardless of whether error by the magistrate is demonstrated (see Allesch v Maunz [2000] HCA 40 at para 23). It seems that the Full Court did not intend to imply that the review was a hearing de novo in the strict sense of a complete re-running of the proceeding under s 34 before this Court as though the hearing before the magistrate had not taken place. Even in a case in which New Zealand applied to the Court for a review of the order of the magistrate, on a hearing de novo in this strict sense, the person whose surrender to New Zealand is sought would have to start again and seek to satisfy the Court of the matters specified in s 34(2) of the Act.
28    In my view, the discretion given to the Court by s 35(6)(d) to “have regard to evidence in addition to or in substitution for the evidence that was before the magistrate” suggests against the review hearing being a hearing de novo in the strict sense which I have identified. It is appropriate, in my view…for an application for review to identify the grounds upon which the applicant says that the order of the magistrate should be quashed and, in the absence of special circumstances, for the consideration of the Court to be limited to those grounds.

A magistrate’s function under s 34 of the Act is administrative, rather than judicial: Newman v New Zealand (No 2) (2012) 206 FCR 17 at [17]. The Full Court in Kenneally characterised the nature of the review under s 35 of the Act in the way described by Mason J in Builders Licensing Board v Sperway Constructions (SYD) Pty Ltd (1976) 135 CLR 616 at 621 as follows:
Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect.

In Heslehurst, Branson J distinguished the “rehearing de novo” described in Keneally from a “hearing de novo in the strict sense”. The difference is that in the former, the applicant need not start all over again and the reviewing court may have regard to both the material before the magistrate and any additional evidence.

In Heslehurst, Branson J said that it is appropriate for an application for review to identify the grounds upon which the applicant says the order of the magistrate should be quashed. Her Honour was not thereby suggesting that it is necessary for an applicant to demonstrate error, but was instead referring to a procedural requirement. Although an applicant for review need not demonstrate error, logically the applicant will attempt to persuade the Court that there is a reason to make a decision different to the decision made by the magistrate.  An applicant may do so by demonstrating that the magistrate made a legal, factual or discretionary error (including error as to the weight given to relevant factors), or by adducing additional evidence that was not before the magistrate.  The grounds relied on by the applicant must be identified in order to give the respondent notice of the case that the respondent has to meet”

It was argued by the Crown that the respondent had consented to his surrender and therefore s 33 A(2) of the Act was enlivened. This was found not to be the case.

According to Rangiah J: “The Acting Magistrate also seems to have relied on the respondent’s indication that he would voluntarily return to New Zealand if he were released instead of surrendered. It is impermissible for a magistrate to take into account a person’s indication that he or she will voluntarily return to New Zealand when considering whether surrender would be unjust, oppressive or too severe a punishment. 

The respondent submits that, having regard to all the evidence presently before the Court, his surrender would be unjust or oppressive. I do not understand the respondent to contend that his surrender would be too severe a punishment. The expression “unjust” is directed primarily to the risk of prejudice to the person in the conduct of the trial itself, while “oppressive” is primarily directed to hardship resulting from changes in the person’s circumstances; but there is room for overlapping:  New Zealand v Moloney(2006) 154 FCR 250 at [65]-[66]; Kakis v Government of Cyprus [1978] 1 WLR 779 at 782-783”.

His Honour accepted “that the respondent did not leave New Zealand in order to avoid facing criminal charges.  I consider that the delay between the alleged offences and the application for an endorsement of the warrant on 21 December 2016 was excessive. The delay was not the fault of the respondent. The delay on the part of the New Zealand authorities is largely unexplained. The applicant has not explained, for example, why it took some six months for irregularities in the arrest warrant to be identified, a new warrant to be obtained and the Police Commissioner’s delegate to grant authority to proceed with the extradition. The applicant has not explained why it then took nine months for the extradition request to be sent to Australia. In the absence of any explanation, the delay seems extraordinary. 

While police could not normally be criticised for failing to keep a person accused of an offence informed as to whether a warrant had been issued for his arrest, there is uncontradicted evidence that the respondent was misled into thinking that there was no warrant. There is also unchallenged evidence that the respondent would have returned to New Zealand voluntarily if he had been told by late 2015 that a warrant had been issued.

While mere delay may, of itself, often be insufficient, the consequences of delay can be significant, especially where the delay is not the fault of the alleged offender: New Zealand v Moloney at [77]; New Zealand v Venkataya (1995) 57 FCR 151 at 166. 

The respondent’s employment will be affected and he faces significant financial detriment because he has a mortgage and vehicle loans which he will be unable to service if he is surrendered and committed to prison to await his surrender. In addition, the fact that he would now return to New Zealand involuntarily means that it is less likely that he would obtain bail. I accept that the respondent and his family are prejudiced by the delay and the misleading conduct of New Zealand police”.  

The involuntary extradition of a person means that there will necessarily be a level of disruption to the person’s life. The person also faces the loss of his or her liberty while awaiting removal. Those matters are inherent in extradition. The legislation contemplates that something more than the disruption, inconvenience and detriment that will be caused to every person must be shown if the surrender is to be regarded as unjust, oppressive or too severe a punishment. 

In this case, I accept that because of the delay and the misleading conduct of the New Zealand police, the respondent’s position has changed and he and his family will suffer more than the usual disruption, inconvenience and detriment. Against that consideration, the gravity of the alleged offences is an important matter to be taken into account: New Zealand v Venkataya at 166. The alleged offences are serious – involving planned, sustained violence with a weapon. There is also a significant public interest in allowing alleged criminal conduct to be dealt with in accordance with the processes of the criminal law.

In these circumstances, I am not satisfied that because of the lengthy period that has elapsed since the offences were allegedly committed, or for any other reason, it would be unjust or oppressive to surrender the respondent”.