Kenneally v New Zealand

Federal Court of Australia|1999-09-24|Before: Gyles JJ

THE COURT: 1 On 3 September 1999 the Court determined that the appeal in this matter should be allowed. Orders were made setting aside the judgment of the Supreme Court of New South Wales, and directing that the appellant be released from custody. The Court reserved its reasons for judgment. These are those reasons.

Background 2 The appellant, Kevin Patrick Kenneally, was the subject of a warrant issued by a New Zealand judge on 5 November 1998. That warrant sought the appellant's arrest on the following charges: "(i) Between 1 January 1998 and 20 June 1998, at Auckland, together with Kelly Raymond ROBERTSON, did commit an offence against the MISUSE OF DRUGS ACT 1975, SECTION 6(1)C AND 2(B), DID HAVE POSSESSION OF A CLASS B CONTROLLED DRUG NAMELY METHAMPHETAMINE FOR SUPPLY. (ii) Between 1 January 1998 and 20 June 1998, at Auckland, together with Kelly Raymond ROBERTSON, did commit an offence against the MISUSE OF DRUGS ACT 1975, SECTION 6(1)C AND 2(B), DID SUPPLY A CLASS B CONTROLLED DRUG NAMELY METHAMPHETAMINE TO STEVEN RIKI. (iii) Between 1 January 1998 and 4 October 1998, at Auckland, together with Kelly Raymond ROBERTSON, did commit an offence against the MISUSE OF DRUGS ACT 1975, SECTION 6(2A) AND (b), CONSPIRED TO SUPPLY THE CLASS B CONTROLLED DRUG NAMELY METHAMPHETAMINE." 3 On 16 December 1998 the warrant was indorsed pursuant to s 28 of the Extradition Act 1988 (Cth) ("the Act") by a magistrate in New South Wales. On 8 January 1999 the appellant was arrested pursuant to the warrant. He was brought before the Local Court on the same day. The hearing of the proceedings for his extradition was set down for 18 March 1999. On that date a magistrate made orders for surrender and committal under s 34(1)(c) and (d) of the Act. The appellant sought review of those orders in the Supreme Court of New South Wales. He was subsequently granted bail. 4 The evidence relied upon before the magistrate on 18 March 1999 in support of the making of the orders under s 34(1) was not tendered on review in the Supreme Court. Proceedings for review pursuant to s 35 of the Act are by way of re-hearing de novo. Accordingly, there was no need, on review, for any consideration to be given to the evidence relied upon before the Local Court. Nor, it should be added, has that evidence been placed before this Court. 5 In the proceedings on review in the Supreme Court it was not contended that there was any irregularity in the indorsement of the warrant under s 28 of the Act, nor in the arrest of the appellant on that indorsed warrant. The argument for the appellant was confined to a submission that, having regard to the provisions of s 34(2) of the Act, the order made by the magistrate for the appellant's surrender to New Zealand should be quashed.

The relevant legislative provisions 6 Part 3 of the Act deals exclusively with extradition from Australia to New Zealand. The background to Pt 3 is contained in the Second Reading Speech for the relevant Bill, references to which are conveniently set out in New Zealand v Venkataya (1995) 57 FCR 151 at 163-4: "The Bill contains a special part which governs extradition relations with New Zealand. Our close ties with that country have made appropriate a reciprocal regime which bears a very close similarity to the extradition relations between the various Australian States and Territories contained in the Service and Execution of Process Act 1901. Fugitives are moved between Australia and New Zealand by a process based on the backing of warrants by magistrates. The whole process is normally handled by the police in exactly the same way as an interstate extradition would be handled. The Bill's only innovation in this area is to permit temporary surrender to New Zealand." 7 Section 28 of the Act provides that where an application is made in the statutory form for the indorsement of a New Zealand warrant under s 28(a), and the magistrate to whom the application is made is informed by affidavit "that the person for whose arrest the warrant is in force is, or is suspected of being, in or on his or her way to Australia", the magistrate shall indorse the warrant so as to authorise its execution in Australia. 8 Section 32 of the Act provides that following arrest on a warrant indorsed under s 28, the person arrested is to be brought before a magistrate "as soon as practicable" in order to be remanded for such period as may be necessary for the purpose of proceedings under s 34. 9 Section 34(1) of the Act provides that where a person has been remanded following arrest upon an indorsed New Zealand warrant, and a request has been made for proceedings to be conducted under s 34, the magistrate shall order that the person be surrendered to New Zealand (s 34(1)(c)) and that the person be committed to prison pending surrender to New Zealand (s 34(1)(d)) unless the magistrate makes an order under s 34(2). 10 Section 34(2) of the Act is of critical importance. It provides as follows: "(2) If the magistrate is satisfied by the person that, because: (a) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature; (b) if that offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or (c) a lengthy period has elapsed since that offence was committed or allegedly committed; or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released." 11 Section 34(4) of the Act provides: "(4) In the proceedings under this section, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued." As noted earlier, s 35 of the Act provides for review of an order made under s 34. Such a review may be by the Supreme Court, or by this Court. A review under s 35 is to be "by way of re-hearing", and the Court may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate (s 35(6)(d)).

The proceedings before the Supreme Court 12 The respondent relied upon the following evidence in the review proceedings before the Supreme Court: · An affidavit of Darryl Brazier, Detective Sergeant of New Zealand police sworn on 4 May 1999. · An affidavit of Simon Penny of the Australian Federal Police sworn on 4 May 1999. 13 This evidence was tendered by the respondent in order to establish what material had been placed before the judge in New Zealand who had issued the New Zealand warrant, and also what material had been placed before the magistrate who indorsed the warrant pursuant to s 28 of the Act. The primary judge considered the evidence in these affidavits to be admissible. His Honour received that evidence over objection by counsel for the appellant who, incidentally, was described as the plaintiff in the proceedings in the Supreme Court. 14 The appellant sought to rely upon an affidavit sworn on 21 May 1999 by his solicitor, Leigh Johnson. That affidavit contained material which was plainly objectionable, consisting largely of the appellant's instructions to Ms Johnson. His Honour declined to receive those paragraphs to which objection was taken. The appellant did not himself give evidence before his Honour. 15 The primary judge concluded that the effect of s 34(1) of the Act was that the magistrate was required to order that the appellant be surrendered to New Zealand upon proof of his arrest on an indorsed New Zealand warrant unless satisfied that an order should be made under s 34(2). His Honour concluded that the same approach should be adopted on review pursuant to s 35 of the Act as in the original proceeding before the magistrate. His Honour was plainly correct in approaching the matter in that way - Daemar v Parker [1975] 2 NSWLR 744 at 746 per Yeldham J. 16 It was clear that the evidence relied upon by the respondent before his Honour established: · The arrest of the appellant under an indorsed New Zealand warrant. · A request enlivening consideration of s 34 of the Act. 17 His Honour accepted that the appellant bore the onus of proving that an order in his favour should be made under s 34(2) of the Act. As his Honour correctly observed, this is clear from the language of the sub-section itself: "if the magistrate is satisfied by the person …" See also New Zealand v Venkataya (supra) at 163. 18 His Honour observed that the standard of proof required was the civil standard, that is, proof on the balance of probabilities, and referred to Daemar v Parker (supra), and Bates v McDonald (1985) 2 NSWLR 89 at 99 in support of that conclusion. 19 Sensibly, the appellant did not submit that he should be released because the offence in relation to which the indorsed warrant was issued was, within the meaning of s 34(2)(a) of the Act, "of a trivial nature". As his Honour correctly observed, it was clear that the drug related offences identified in the warrant could not be categorised as trivial. 20 Moreover, the appellant did not submit that he should be released because of the lapse of time since the offences were allegedly committed. It was common ground that s 34(2)(c) of the Act was not applicable. 21 Rather, the appellant submitted that his Honour ought to be satisfied, pursuant to s 34(2)(b) of the Act, that the accusation was not made "in good faith or in the interests of justice". 22 His Honour was not satisfied that the accusation made against the appellant had not been made "in good faith". As his Honour observed: "To establish that an accusation was not made in good faith would require proof that the accusation was made without a genuine belief that it was true: see Bates v McDonald at 99 where Samuels JA said (referring to the same concept in the Extradition (Commonwealth Countries) Act, 1966): 'An accusation not made in good faith is one made without an honest belief in its truth. If honest belief exists the requirement will not be satisfied however negligently or carelessly the accusation was made.'" 23 We have no doubt that his Honour was correct in concluding that the appellant had not demonstrated that the accusation made against him was not made in good faith. Det Sgt Brazier, who had the conduct of this matter for the New Zealand police, was cross-examined before his Honour. Nothing in his cross-examination came close to establishing a lack of good faith in his pursuit of the accusations against the appellant. 24 The primary focus of the appellant's submissions before his Honour was that the respondent's accusations were not made "in the interests of justice". The appellant submitted, adopting expressions utilised in Willoughby v Eland (1985) 59 ALR 147 at 152, and Bates v McDonald (supra) at 95, that the respondent's accusations against him were "wholly misconceived", that they "could not possibly be right" and that it was "demonstrably clear that the proceedings could have no foundation at all". That being so, the appellant contended, it could not be "in the interests of justice" that he be extradited to New Zealand to face trial on the charges which had been laid against him. 25 In support of that contention, the appellant relied upon the following statement of principle in Venkataya at 165: "(i) On an application for the surrender of a person to New Zealand, it is not necessary, at least in the first instance, for the applicant to adduce evidence of the guilt of the person apprehended: Narain v DPP [(1987) 15 FCR 411] at 419. However, if the person apprehended can show that there is no evidence to support the charge, or that there are other reasons why the prosecution cannot succeed, the court is likely to conclude that the accusation was not made in the interests of justice, within the meaning of s 34(2)(b) and that the surrender of the person would be unjust or oppressive: Bates v McDonald [(1985) 2 NSWLR 89] at 102; Lewis v Wilson [(1987) 90 FLR 251]; Binge v Bennett [(1988) 13 NSWLR 578] at 585; Butler v Morahan (1988) 94 FLR 372." (emphasis added) 26 In dealing with this submission, his Honour noted that the affidavit evidence relied upon by the respondent disclosed that police in New Zealand had, on 4 October 1998, used a listening device to record a conversation that took place, allegedly between the appellant and Kelly Raymond Robertson, at premises at 80 Fairburn Road, Otahuhu, pursuant to a warrant issued in the High Court in Auckland. The respondent contended that the conversation so recorded inculpated the appellant in the offences specified in the subject New Zealand warrant. 27 In his affidavit of 4 May 1999, Det Sgt Brazier stated that a brief of evidence had been prepared in New Zealand supporting the charges against the appellant. 28 In an affidavit sworn on 5 November 1998 which was annexed to his affidavit of 4 May 1999 Det Sgt Brazier stated his belief that the conversation which had been recorded related to a drug deal between the appellant and a person known as Steven Riki, just prior to Riki's death of a heart attack on 20 June 1998. Riki had been well known to the police, and had seven drug-related convictions. As a result of his death, a toxicology report had been completed. This showed a high level of methamphetamine present in his blood and liver. 29 In his affidavit of 5 November 1998 Det Sgt Brazier said that it was "apparent" that the appellant had obtained "the drug", valued at $12,000, from Robertson, and supplied it to Riki, who had not paid the appellant for it prior to his death. That amount of $12,000 would be for the sale of three ounces of methamphetamine, given that the current street value of one ounce in New Zealand was between $3,500 and $4,500. Det Sgt Brazier referred to two expressions which he had heard used during the course of the conversation. These were: "all the grams that we bagged" (by the appellant at the end of the conversation), and several references to "that" (being, Det Sgt Brazier believed, references to methamphetamine). He said that he believed that there was sufficient evidence contained in the intercepted conversation to charge the appellant with the three offences in relation to which his extradition was sought. 30 In an affidavit of 14 December 1998 which was exhibited to his affidavit of 4 May 1999, Mr Penny, the Australian Federal Police officer, referred to the same conversation as "the basis of the charges laid in New Zealand against [the appellant]". He also stated that "the evidence available in New Zealand consists of legally obtained taped conversations" between the appellant and Robertson. However, only one such conversation was referred to by Det Sgt Brazier in his affidavit. He almost certainly would be in a better position than Mr Penny to know the true situation. 31 A copy of the compact disc which the respondent claimed recorded the intercepted conversation was tendered before his Honour as Exhibit B. On the appellant's application, that disc was played in court. His Honour was invited to decide for himself what was recorded on this disc which, both sides accepted, was of, at best, uneven quality. 32 There were, in fact, before his Honour, three transcripts purporting to set out what was recorded on the disc. The first of those transcripts was what Det Sgt Brazier described in evidence as a "working transcript", and which he conceded was not entirely accurate. He said that he had relied upon this transcript in order to secure the issue of the warrant on 5 November 1998. 33 The second transcript, admitted into evidence before his Honour as Exhibit C, was what Det Sgt Brazier described as "the evidentiary transcript". That transcript would be relied upon at trial in New Zealand in the event that the appellant was extradited. Det Sgt Brazier made it plain that Exhibit C was the more accurate of the two transcripts which he had prepared, and that it was his belief that it represented correctly what was on the disc. 34 The third transcript before his Honour was an annexure to the affidavit of Leigh Johnson. It was a transcript prepared from a copy disc which had been served upon the appellant. That transcript, which had been prepared at the behest of the appellant, differed from Exhibit C in several key respects. 35 The primary judge noted that none of these three transcripts afforded independent evidence of what was recorded on the relevant disc, still less independent evidence of the conversation somewhat fragmented parts of which the disc purported to enable the court to hear. His Honour was prepared to assume that, if the appellant stood trial in New Zealand, the jury would be instructed as to the limited use to which such a transcript could be put, bearing in mind the principles laid down by the High Court in Butera v Director of Public Prosecutions (1987) 164 CLR 180. 36 The appellant submitted that, having heard the disc played, his Honour would conclude that it did not provide any evidence of the appellant's criminal participation in drug related activities so as to support the charges set out in the New Zealand warrant. 37 In rejecting that submission, the primary judge observed: "Having considered the matter, I have concluded that it is inappropriate for me on a hearing of this nature to make a final determination as to what has been recorded in the intercepted conversation. Sergeant Brazier's evidence was that, having heard the disc played a number of times, he considered Exhibit C to be an accurate transcript. Whoever prepared the transcript annexed to Ms Johnson's affidavit upon which the plaintiff relies would obviously disagree. It will be for the court hearing the charges against the plaintiff to resolve what the disc has recorded and the significance to be attributed to such evidence. Even if it be assumed, contrary to the version for which the defendant contends, that the disc does not inculpate the plaintiff in the manner claimed (and the plaintiff has not satisfied me of this), it would not follow that the defendant cannot prove any of the charges. Paragraph 10 of Sgt Brazier's affidavit, upon which he was not cross examined, is as follows: "A brief of evidence has been prepared in New Zealand supporting the charges against Kevin Kenneally as set out in the original warrant marked 'B'." Since details as to the contents of that brief have not been elicited in this Court, I cannot assume that the defendant is entirely dependent upon what is heard on the record of the intercepted conversation in order to support the case it intends to prove against the plaintiff. Mr Jones relied in seeking to discharge the onus on the plaintiff not only upon what he contended I would find was recorded on the disc but upon responses elicited from Sgt Brazier in cross examination: (a) that the police had conducted fifty days of listening device interceptions, and there was only the one interception involving the plaintiff over a period of twenty minutes; (b) that the plaintiff had a legitimate reason to be in New Zealand at the time, namely to attend the funeral of a member of the family and that he was then travelling north to visit friends; (c) that Sgt Brazier was unable to say precisely when the alleged offences occurred, or where they occurred or what was the quality of the drug. In my opinion none of those responses tips the scales in the plaintiff's favour. The task for a plaintiff facing extradition to satisfy a court for the purposes of s 34(2) that the accusation against him is demonstrably without foundation so as to render it contrary to the interests of justice to extradite him is extremely onerous. This is so even in a case where there have been committal proceedings and the court called upon to consider s 34(2) has the advantage of access to the transcript of the proceedings, as in Bates v McDonald (supra). However here there have been no committal proceedings, the Court has not seen the brief of evidence to which Sgt Brazier referred and simply does not know the totality of the evidence the defendant will be able to adduce. McHugh JA said, by way of assessment of such a situation, in Bates v McDonald (at 102): "In cases where no evidence has yet been given against [the person sought to be extradited], or where the whole of the evidence has not been tendered, his task of establishing that the accusation was not brought in the interests of justice will be almost impossible." Those dicta are particularly apt in the present circumstances. The plaintiff has not satisfied me on the balance of probabilities that this is an appropriate case for an order under s 34(2). Accordingly I confirm the order made by the magistrate under s 34(1)(c) and I revoke the plaintiff's bail. I order that he be taken into custody pending the execution of the warrant ordered under s 34(1)(c)." 38 It is apparent, therefore, that the primary judge dismissed the application for review upon two separate bases: · It was not appropriate for an Australian magistrate, or judge on review, to decide which version of the transcript of the intercepted conversation was the more accurate. It was for the Court hearing the charges against the appellant to resolve what the disc had recorded. · Irrespective of what the disc had recorded, it could not be assumed that there was no other evidence available to support the charges which had been laid. A brief, the contents of which had not been elicited, had been prepared in New Zealand. It could not, therefore, be said that the accusation against the appellant was so demonstrably without foundation as to render it contrary to the interests of justice to extradite him.

The appeal to this Court 39 The appellant's submissions in the appeal to this Court differed in several key respects from those which he had advanced in the Supreme Court. 40 Initially the appellant contended that the primary judge had misdirected himself when he concluded that it was inappropriate for him on an application for review to determine for himself what had been recorded in the intercepted conversation. Moreover, the appellant initially contended that his Honour had erred in receiving, over objection, the evidence of Det Sgt Brazier and Mr Penny. 41 Both these contentions were abandoned, however, during the course of argument in the appeal. In our opinion the primary judge was plainly correct in declining to embark upon the process of deciding whether Det Sgt Brazier's version of what was on the transcript should be accepted in preference to the appellant's expert's version. As for the evidence of Det Sgt Brazier and Mr Penny, it was not only admissible but essential to the appellant's case that it be received. 42 The appellant's submission to this Court, as it was finally put, was that even if Det Sgt Brazier's version of what was recorded on the disc were to be accepted, the accusation against the appellant, in so far as it was based upon the recording, was demonstrably without foundation. Moreover, the primary judge had erred in failing to be satisfied on the evidence before him that there was no other evidence of any significance capable of supporting the charges which had been laid. It followed, so it was said, that it was not "in the interests of justice" that the appellant be extradited to be tried upon those charges. Alternatively, the primary judge ought to have been satisfied that "for any other reason, it would be unjust, oppressive or too severe a punishment" to surrender the appellant to New Zealand. 43 The respondent acknowledged that the appeal should be allowed if this Court were persuaded that his Honour ought to have found that Det Sgt Brazier's version of the conversation which was recorded did not support the charges laid, and that his Honour ought also to have found on the evidence before him that there was no other evidence of any significance to support those charges. That concession was properly made.

Australia's extradition arrangements with New Zealand 44 Before dealing with the contentions advanced by senior counsel for the appellant in this Court it is necessary to say something further about Australia's extradition arrangements with New Zealand. Probably the leading analysis of the special arrangements which exist between this country and New Zealand in relation to extradition has been Bates v McDonald (supra). That case, together with Willoughby v Eland (supra), dealt with the position under the Extradition (Commonwealth Countries) Act 1966 (Cth) ("the 1966 Act") in which s 27(b) was similar to s 34(2) of the present Act, but with one important difference. Under the 1966 Act it was held that establishing one of the equivalents of s 34(2)(a), (b) or (c) was necessary to establish injustice, oppression or severity sufficient to avoid surrender. It will be observed that the present section, s 34(2), contains a further alternative, "or for any other reason". 45 The 1966 Act was amended to produce the present provision by the Extradition (Commonwealth Countries) Amendment Act 1985 (Cth). As Kirby P (as he then was) pointed out in Bates v McDonald, the explanatory memorandum and the Parliamentary Debates on that Bill are of limited assistance concerning the purpose of the amendment. However, his Honour drew attention to the decision of Yeldham J in Daemar v Parker (supra) where that judge suggested the possibility of legislative amendment to bring the then s 27 of the 1966 Act into line with s 18(6) of the then Service and Execution of Process Act 1901 (Cth). Under that provision an interstate extradition could be refused if: "It appears to the magistrate … before whom the person is brought under this section that: (a) the charge is of a trivial nature; (b) the application for the return of the person has not been made in good faith in the interests of justice; or (c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period …" 46 It seems to us to be clear enough that the 1985 amendment, which has been carried forward into the present Act, was intended to bring New Zealand extradition into line with interstate extradition, as it stood in 1985. The amendment to the Act was designed to widen the scope for a refusal to extradite by removing the limitation which existed arising from the need to establish one of the matters set out in s 27(a), (b) or (c) of the 1966 Act as a condition precedent to release, and by providing for a more general basis upon which extradition could be challenged. An example of this wider approach to the basis for refusal of extradition is to be seen in Bannister v New Zealand (1999) 86 FCR 417, a decision of the Full Court in which it was held to be unjust and oppressive to return the appellant to New Zealand in circumstances where his trial in that country would be conducted in a manner which had been disapproved of by the High Court of Australia as objectionable. 47 The introduction into the Act of the expression "for any reason, it would be unjust, oppressive or too severe a punishment" seems to us to make directly applicable to the present section a long line of authority dealing with discretion pursuant to the Service and Execution of Process Act. It also avoids the necessity to construe s 34(2)(b) in such a way as to cover the situation where there is a hopeless case, but no evidence of any collateral purpose or lack of bona fides. 48 The point was made succinctly in Aston v Irvine (1955) 92 CLR 353 at 366 where in the context of an application under the Service and Execution of Process Act to have several persons remanded from Victoria to South Australia, s 18(6)(c) was said to operate as follows: "It would be unjust or oppressive to return the accused to Adelaide if the facts as they are alleged or appear make it clear that there was no indictable conspiracy." 49 The various decisions under the Service and Execution of Process Act were reviewed by Sugerman JA in Ex parte Klumper; re Service & Execution of Process Act (1966) 86 WN (Pt 1) (NSW) 142 and by Lush J in Rider v Champness [1971] VR 239. In the latter case, his Honour recognised that it was open to a person brought before a magistrate to ask for particulars of the charge against him in order to raise grounds on which an extradition order should be refused. 50 A decision which is directly in point is that of the Full Court of the Supreme Court of Victoria in Re Alstergren & Nosworthy [1947] VLR 23 in which the expression "for any reason it would be unjust or oppressive to return the person" was considered and, as a result, various individuals were not returned to Tasmania to meet charges of corruption. This was because, upon the material produced by the prosecution, there was no prima facie case. Lowe J (with whom Martin J relevantly agreed) said at 29-30: "Where the charge is regular on its face and the conditions set out in section 18(1) are satisfied it is not unjust or oppressive to return the defendant unless the evidence before the justice, for example, either demonstrates that the defendant has a complete defence to the charge or that the whole evidence which can be adduced by the prosecutor is before the justice and is such that no magistrate could on it properly find a case against the defendant fit to be sent for trial." (emphasis added) 51 Reference was made to the earlier decision in O'Donnell v Heslop [1910] VLR 162 where Madden CJ stated at 170: "It is a general principle of law that that issue [that is, the issue of guilt or innocence] should be determined where the prosecution was instituted, and that is also the intention of this statute. It would, therefore, be prima facie wrong to anticipate the trial of the issue, either in whole or in part, or in a case of this kind to try the case against one of the defendants apart from that of the others. There may, however, be circumstances in some given case which make it quite clear, prima facie at all events, that the charge against the defendant was wholly misconceived, and that it cannot possibly be right - e.g., where an alibi is clearly proved. Or it might be that the facts on which the prosecution is launched may be shown to be so flimsy that according to the principles on which preliminary trials are conducted the magistrate would come to the conclusion that no jury would convict the accused." (emphasis added) See also Hodges J at 174. 52 It is important to note that in both Re Alstergren & Nosworthy and in O'Donnell v Heslop (supra) the prosecution had placed before the court the whole of the proofs which were in its possession. 53 It seems to us that the expression "or for any other reason, it would be unjust, oppressive or too severe a punishment" in s 34(2) of the Act should be construed in accordance with this line of authority, it being the state of the law at the time the amendment was introduced. That approach to the construction of this expression finds support in particular in the judgment of Brennan J in Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322-3. His Honour stated: "The alteration of the law … evokes an application of the rule contemporanea expositio est optima et fortissima in lege - the best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up: Broom's Legal Maxims, 10th ed. (1939), p. 463." 54 It follows that if the evidence upon which the charges have been brought against the appellant is shown to be so weak that, even taken at its highest, no magistrate would commit him for trial, upon a proper application of the traditional test for committal (as to which see Thorp v Abbotto (1992) 34 FCR 366 at 370 per Lockhart J and Wentworth v Rogers [1984] 2 NSWLR 422), this Court should not permit the appellant to be extradited. The fact that the traditional test for committal has been modified in recent years in some States, in order to filter out more cases which are simply too weak to justify trial before a jury, only fortifies us in our view that s 34(2) of the Act was intended to operate in the manner for which the appellant contends. 55 That is not to say that the task which confronts a person who seeks to resist extradition to New Zealand upon the ground that there is no evidence, or insufficient evidence, to support the charges will be anything other than daunting. It will rarely be the case that the minimal requirements for committal, as they have been traditionally understood, will not be satisfied. For example, the fact that there are competing hypotheses available regarding the evidence relied upon by the prosecution will not be sufficient to justify a refusal to grant extradition - see Thorp v Abbotto (supra). 56 Nevertheless, where the Court is satisfied, upon all of the evidence before it, that the evidence taken at its highest for the prosecution fails to disclose a prima facie case, and it is clear that it has available to it no other evidence of any significance, the words of s 34(2) suggest that extradition should be refused.

Does the taped conversation disclose any evidence to support the charges laid? 57 Counsel for the respondent was invited to assume for the purposes of this appeal that despite the very real difficulty in determining whether or not Det Sgt Brazier's version of what was on the disc is indeed accurate, that version would be accepted. He was then invited to identify how that version of the conversation could be said to provide evidence of any of the charges laid. 58 Counsel identified the following extracts from Exhibit C which he submitted provided the basis for the laying of the first two of the three charges that are the subject of these proceedings. The passages in question read as follows: "KENNEALLY: What's that? …..mate, you probably know him …, he a real good friend, and he's always been good with money, … deal to him. ROBERTSON: Is that the last one? KENNEALLY: Yeah. I wen', went straight around and did it … I'll see ya later. ROBERTSON: Get out of here. Oh my god. KENNEALLY: Owing me twelve. (door slams) KENNEALLY: I just thought next week I'll bring the rest, I'll be sweet, cause he's always been good, whenever I've seen him goes, drug dealer, doesn't do the stuff he just drug dealing it. ROBERTSON: Yeah. KENNEALLY: The problem his family … ROBERTSON: Right, bye-bye. (laughs) KENNEALLY: …(laughs) ROBERTSON: (laughs) I'm like that with a mate of mine down the line. KENNEALLY: But anyway, his off-sider came up to me, he said, I'm ahh, m' names Steve RIKI. ROBERTSON: Yeah. KENNEALLY: You know him? ROBERTSON: Yeah. KENNEALLY: His off sider says look, I'm umm, doin' business. He says I understand Steve owes you some money. I says yeah, he says … he says I'll fix you up for it. He's dead, and that's the bloke that got him dead. ROBERTSON: 'eah. [General Conversation] KENNEALLY" …are you. I says to him. I says fucken … i'n it. She went "owwwww", but anyway this bloke has got my money, he hasn't given … ROBERTSON: Nah. Get on to it. … on to the other side. KENNEALLY: … what's his name, what's his name, is it Nev or Noel … ROBERTSON: … Yeah. KENNEALLY: … find out. ROBERTSON: Mmm. KENNEALLY: … he asked me if I had some back up when I go 'round there … ROBERTSON: Yeah, no worries. Ahh, … the … KENNEALLY: Twelve large … ROBERTSON: Mmm. KENNEALLY: … Five thousand to do the business, … ten grand … [General conversation. A female then enters the address and is introduced to ROBERTSON by KENNEALLY as Lynette.] ROBERTSON: Aussie. (Dog barks) KENNEALLY: … money … fix you up. ROBERTSON: Oh you'll be right then. KENNEALLY: Oh that's fucken … only got three months mate. ROBERTSON: Yeah but that's nothing like being in your face. … might fix you up with someone … KENNEALLY: Oh I'll ask him actually, to do a deal. ROBERTSON: Yeah but when ya get them, call it fucken this you know. Not six, … cause ya wont, you know what I mean. KENNEALLY: …I give you six. [General conversation] ROBERTSON: I only put in five. I should have put in … five more, … a full ten obviously … I give him five. KENNEALLY: He was happy with that mate. ROBERTSON: …… KENNEALLY: I, I remember when him misses, says I think your friend put five large into the bank account, an' I says that's good. She goes oh, it came in real handy at the time. [General conversation] KENNEALLY: Yeah, an' an' he had to. They wouldn't let him live in Auckland, so he says to me would you look after me house and me dogs, and I said no problem mate, I'll do that for ya. So I was living in his house for six months just looking after his house and his dogs, feeding his dogs and taking them for walks and that, and he was really happy with that. He said, if you ever … (Sound of tape being pulled from the roll and a zipper) … want to do anything just give us a yell. So I handed him that, he was wrapped. Fuck, an' he died the poor bastard. ROBERTSON: How old? KENNEALLY: Thirty four ROBERTSON: Fuck. KENNEALLY: Heart attack mate. ROBERTSON: He didn't do that. KENNEALLY: Didn't do it. He did a little bit but not much … [General Conversation] ROBERTSON: So where are you staying over in Aussie, Sydney? KENNEALLY: Sydney, I'll give you my address and my phone number. [General Conversation] ROBERTSON: T' take their people out of the picture … KENNEALLY: Oh it's is only a little team. It's only … ROBERTSON: Yeah but take them out of the picture, because …. See all those people aren't needed now. It's now people that can get … KENNEALLY: That's the hardest part. ROBERTSON: …the hardest part, making it. KENNEALLY: Nah its not. ROBERTSON: Yes it is. KENNEALLY: Oh, I know a bloke who will do that. ROBERTSON: Yeah, but, not everybody knew. KENNEALLY: Nah, or else everybody would be. ROBERTSON: Exactly. KENNEALLY: … I don't think, I think it's pretty hard to get the stuff over there, but they are right on to it over here. ROBERTSON: Nah. KENNEALLY: They're busting people all the time. ROBERTSON: … BROWN: I'll do it, you relax. ROBERTSON: It's a big place KENNEALLY: Big place. [General conversation] ROBERTSON: Ahh, more interested in fucken, paying debts and just tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick, tick. Not (blowing noises) falling over, running to fast. KENNEALLY: … ROBERTSON: Aye? KENNEALLY: All I can do is go and get this bloke … try to get that fucken …. Trying to. ROBERTSON: Yeah, … lovely i'n't it. KENNEALLY: Well, that was like all the grams that we bagged. ROBERTSON: Mmm KENNEALLY: Fucken had to pay it straight … ROBERTSON: But we, who would say, that he would fucken die on ya, aye. What a cunt. KENNEALLY: Ya wouldn't fucken read about it mate. [General conversation]" 59 Counsel for the respondent submitted that these passages, when understood in context, provided evidence which, though admittedly weak, was capable of supporting the allegation that the appellant had, between 1 January 1998 and 20 June 1998, jointly with Robertson, possessed methamphetamine for supply, and between those dates supplied that drug to Steven Riki. In making this submission, counsel emphasised the fact, which was apparent to the Court, that parts of the conversation which had been recorded were whispered in a manner which might be viewed as suspicious. 60 The third charge in relation to which the appellant's extradition was sought, namely having between 1 January 1998 and 4 October 1998 conspired with Robertson to supply methamphetamine, was acknowledged to lack any evidential support in the taped conversation. All that could be said about that charge was that there might be some evidence to support it in the brief of evidence in New Zealand to which Det Sgt Brazier had referred. 61 In our view, there is no evidence in the taped conversation to support any of the three charges laid. There is nothing in Det Sgt Brazier's transcript of that conversation which would entitle a jury to find that the appellant had, as alleged, either been in possession of methamphetamine, or supplied methamphetamine to Steven Riki. 62 Det Sgt Brazier's transcript, taken at its highest against the appellant, would permit the following conclusions to be drawn: · the appellant and Steven Riki had been good friends; · Riki had been a drug dealer; · Riki had died of a heart attack, aged thirty four; · prior to his death Riki had owed the appellant $12,000; · some other person might assume liability for that debt; · the appellant had himself been involved at some time in the past in dealing in drugs which he had bagged in grams. 63 The taped conversation could not, however, lead a jury to infer that the sum of $12,000 owed by Riki related to the supply by the appellant to him of methamphetamine. Nor could it be inferred that any such supply, even if it had occurred, had taken place in New Zealand, or had taken place between the dates alleged, still less that the appellant had possessed methamphetamine between those dates. It should be noted that the only evidence of the appellant's presence in New Zealand was that contained in the affidavit of Mr Penny, in which it was said that the appellant had arrived in that country on 1 October 1998, and returned to Australia on 9 October 1998. This was well outside the period nominated in the first two charges. As previously indicated there was no evidence at all to support the conspiracy alleged in the third count. 64 The taped conversation, coupled with the affidavit evidence of Mr Penny to the effect that Robertson was a drug dealer who had previously dealt in methamphetamine, and that Riki had been found after his death on 20 June 1998 to have high levels of that drug in his blood and liver, falls short, in our opinion, of a prima facie case that the appellant had committed any of the offences specifically alleged against him. The inferences which a jury would be required to draw to sustain these three charges are simply not open to be drawn on material of such paucity - see Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J. 65 Making due allowance for the need to have regard to the taped conversation in its full context, we are nevertheless of the view that the evidence against the appellant which is contained in that conversation is not merely weak, but virtually non-existent. 66 It need hardly be said that conjecture and surmise are no substitutes for evidence. In Hussien v Chong Fook Kam [1970] AC 942 at 948 Lord Devlin observed that suspicion "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'". This observation was cited with approval in George v Rockett (1990) 170 CLR 104 at 115. While one might legitimately view with suspicion a number of the comments attributed to the appellant, and reasonably infer some vague and unspecified involvement on his part in drug dealing, that is a far cry from the establishment of a proper basis for the laying of the three charges in relation to which his extradition is sought. 67 We have already indicated that the evidence relied upon as the basis for the appellant's extradition fails to establish a prima facie case against him. The proceedings are, in our opinion, "clearly foredoomed to fail", and would therefore, in this country, be regarded as an abuse of process - see Walton v Gardiner (1993) 177 CLR 378 at 393. Were the appellant to be tried in this country on this evidence, a judge would be bound, in accordance with the principles laid down by the High Court in Doney v The Queen (1990) 171 CLR 207, to take this case away from the jury. The evidence is not merely tenuous or inherently weak or vague - it is incapable of supporting a verdict of guilty. Moreover, were a jury to convict the appellant on these charges, an appellate court would almost certainly overturn any such conviction as being unsafe and unsatisfactory - Morris v The Queen (1987) 163 CLR 454; Chidiac v The Queen (1991) 171 CLR 432. It follows that whatever the precise test that should be applied to gauge the sufficiency of this evidence to support the appellant's extradition, the test is not met. 68 The primary judge was not prepared to assume that there was no other evidence, apart from the taped conversation, available to support the three charges which had been laid. The reference to a "brief of evidence" in New Zealand led his Honour to conclude that he could not be satisfied of the matters set out in s 34(2) of the Act. He observed that there might be a substantial body of evidence which implicated the appellant in these offences, and which had simply not been identified. 69 With respect, we find ourselves unable to agree with his Honour's reasoning in this regard. While the onus of satisfying the Court that the matters set out in s 34(2) of the Act plainly rests upon the appellant, the standard of proof which must be met is the civil standard only. 70 Mr Penny, in his affidavit of 14 December 1998, stated that the taped conversation between the appellant and Robertson was "the basis of the charges laid in New Zealand against [the appellant]". He also said that the evidence available in New Zealand "consists" of legally obtained taped conversations between the appellant and Robertson. 71 Det Sgt Brazier, in cross examination, acknowledged that there was only one such taped conversation. While it may reasonably be assumed that the brief of evidence which had been prepared in New Zealand contained some evidence which would be led at the trial of the appellant in addition to that contained in the disc (such as evidence of the death of Steven Riki, the toxicology reports, and evidence of the appellant's movements into and out of New Zealand) there is nothing to suggest that Mr Penny's evidence as to the basis of the case should not be accepted. This was, after all, the respondent's own evidence, adduced in support of its application for the appellant's extradition. 72 If it should transpire that there is in fact additional evidence available to support the charges against the appellant, and that its existence has simply not been adequately disclosed hitherto, there is, of course, in accordance with well established principle, no impediment to a further warrant being issued, and a further application for the extradition of the appellant being brought. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Applicant: Mr C Steirn SC together with Mr G Jones

Solicitors for the Applicant: Leigh Johnson Lawyers

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

Date of Hearing: 2 & 3 September 1999

Extradition Act 1988(Cth)ss 28, 34(1)(c), 34(1)(d), 34(2), 34(4), 35

Countries) Act 1966(Cth)

Countries) Amendment Act 1985(Cth)

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