Kenneally v New Zealand

Supreme Court of NSW|1999-08-31|Before: Studdert J

New South Wales Supreme Court CITATION : Kenneally v New Zealand [1999] NSWSC 869 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 10696/99 HEARING DATE(S) : 25/8/99-26/8/99 JUDGMENT DATE : 31 August 1999

PARTIES : Kevin Patrick Kenneally (Plaintiff) New Zealand (Defendant) JUDGMENT OF : Studdert J

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Ms M.S. Jerram

COUNSEL : G.J. Jones (Plaintiff) M.A. Wigney (Defendant) SOLICITORS : Leigh Johnson (Plaintiff) Commonwealth Director of Public Prosecutions (Defendant) CATCHWORDS : Extradition to New Zealand; order by magistrate for surrender to New Zealand; application for review; whether accusation not made in interests of justice; Extradition Act 1988 (Commonwealth) ss 28, 32, 34 and 35 ACTS CITED : Extradition Act 1988 New Zealand v Venkataya (1995) 57 FCR 141 Daemar v Parker (1975) 7 ALR 564 Bates v McDonald (1985) 2 NSWLR 89 CASES CITED : Brackenridge v New Zealand (unreported, Court of Appeal (Qld), 2 October 1988) Bannister v New Zealand [1999] FCA 362 Willoughby v Eland (1984-85) 59 ALR 147 Butera v Director of Public Prosecutions (1987) 164 CLR 180 DECISION : Order of magistrate confirmed; bail revoked; plaintiff to pay defendant's costs of summons.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: This is a summons for review of orders made by a magistrate under s 34 of the Extradition Act 1988 (Commonwealth). The plaintiff, Kevin Patrick Kenneally, named the Commonwealth Director of Public Prosecutions as defendant, but it was conceded that "New Zealand" should be substituted as defendant and an order to that effect was made by consent. The summons sought an order for review pursuant to s 35 of the Extradition Act but I was asked to treat the matter as a review and the hearing proceeded on this basis.

Part 3 of the Extradition Act 2 At the outset it is desirable that I consider the relevant provisions of Part 3 of the Extradition Act which deals exclusively with extradition from Australia to New Zealand. By way of background to it, I refer to the Second Reading Speech for the relevant Bill, which is conveniently set out in New Zealand v Venkataya (1995) 57 FCR 151 at 163-164: "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." 3 The first of the provisions in Pt 3 to which I refer is s 28. Where an application is made in the statutory form for the endorsement 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 endorse the warrant so as authorise its execution in Australia. 4 Then under s 32, following arrest on a warrant endorsed under s 28, the person arrested is to be brought before a magistrate "as soon as practicable", for remand for such period as may be necessary for the purpose of proceedings under s 34. 5 Section 34(1) provides that where a person has been remanded following arrest upon an endorsed New Zealand warrant, and a request has been made for proceedings to be conducted under the section, the magistrate shall order that the person be surrendered to New Zealand (s 34(1)(c)), and order 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). That sub-section I set out in full: "(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 the 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." 6 Section 34(4) 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." 7 Section 35 provides for review of an order made under s 34, where appropriate, by this court. Section 35(2) provides: "(2) The Court may, by order: (a) confirm the order of the magistrate; or (b) quash the order of the magistrate and direct a magistrate to: (i) in the case of an order under paragraph 34(1)(c) - order the release of the person; or (ii) in the case of an order under subsection 34(1) - order, by warrant, that the person be surrendered to New Zealand." 8 A review under s 35 is to be "by way of rehearing", 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 earlier proceedings against the plaintiff 9 On 5 November 1998 a New Zealand judge issued a warrant for the arrest of the plaintiff on the following charges: "1. 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. 2. 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. 3. 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." 10 The New Zealand warrant was endorsed by a magistrate in New South Wales pursuant to s 28 of the Extradition Act on 16 December 1998 and on 8 January 1999 the plaintiff was arrested on the warrant. He came before the Local Court on the same day. The hearing of the proceedings for extradition was set down for 18 March 1999. On that date the magistrate made orders for surrender and committal under s 34(1)(c) and (d) of the Extradition Act. The applicant was subsequently granted bail in this court. 11 The evidence before the magistrate on 18 March 1999 to support the making of the orders under s 34(1) was not tendered in this Court, and since these proceedings under s 35 are by way of rehearing there has been no need for counsel to focus on the evidence placed before the Local Court in March 1999. 12 It has not been contended that there was any irregularity in the endorsement of the warrant under s 28 nor in the arrest of the plaintiff on that endorsed warrant, nor since the proceedings before this Court are by way of rehearing has there been any submission addressed by the plaintiff to the reasons for the decision taken by the magistrate on 18 March 1999. In these circumstances neither the transcript of proceedings before the magistrate nor the magistrate's reasons have been placed before me. 13 Before this Court, Mr Jones, who appeared for the plaintiff, has submitted that s 34(2) assumes relevance and that having regard to the provisions of this subsection the order made by the magistrate for the surrender of the plaintiff to New Zealand should be quashed.

The proceedings before this Court 14 The defendant in this Court relied upon the following evidence:

(i) an affidavit by Darryl Brazier, Detective Sergeant of New Zealand police sworn on 4 May 1999;

(ii) an affidavit of Simon Penny of the Australian Federal Police sworn 4 May 1999. 15 This evidence was admitted subject to objections by Mr Jones. The evidence was tendered to establish what was placed before the judge in New Zealand who issued the New Zealand warrant and what was placed before the magistrate who endorsed the warrant under s 28. I consider the evidence in these affidavits is admissible having regard to the purpose for which the evidence was tendered and the scheme of Pt 3 of the statute. 16 The plaintiff sought to rely upon the affidavit of Leigh Johnson, the plaintiff's solicitor, which affidavit was sworn on 21 May 1999. The affidavit expressed "instructions" given by the plaintiff to his solicitor, and the defendant objected to the instructions as affording proof of the assertions of fact conveyed in the instructions. That objection is of substance. 17 The plaintiff, whilst in Court, gave no evidence and I do not regard the instructions received as probative of the assertions of fact apparently conveyed by the plaintiff to his solicitor. 18 The effect of s 34(1) of the Extradition Act is, as Mr Wigney for the defendant submitted, that the magistrate was required to order that the plaintiff be surrendered to New Zealand upon proof of his arrest on an endorsed New Zealand warrant unless satisfied that an order should be made under s 32(2). The evidence before the magistrate attracted the operation of s 34(1), unless the magistrate made an order under s 34(2). The same approach to s 34 is required when this Court reviews the magistrate's order pursuant to s 35: 19 Plainly the evidence relied upon by the defendant in this Court establishes:

(i) the arrest of the plaintiff under an endorsed New Zealand warrant;

(ii) a request enlivening consideration of s 34. 20 This Court must approach this matter upon the basis that the statutory scheme, upon proof of (i) and (ii), requires an order under s 34(1)(c) unless an order should be made under s 34(2). 21 The plaintiff bears the onus of proving that an order should be made in his favour under s 34(2). This is clear from the language of the sub-section itself: "If the magistrate is satisfied by the person …" 22 See also New Zealand v Venkataya at 163. The standard of proof required is the civil standard, that is to say, proof on the balance of probabilities: see Daemar v Parker (1975) 7 ALR 564 at 569 and Bates v McDonald (1985) 2 NSWLR 89 at 99. 23 Mr Jones has not contended that an order for the plaintiff's release should be made because the offence in relation to which the endorsed warrant was issued was "of a trivial nature" s 34(2)(a). Clearly the drug related offences identified in the relevant warrant are not to be categorised as trivial. 24 Nor has it been submitted that the plaintiff should be released because of the lapse of time since the offences were allegedly committed: s 34(2)(c). 25 The thrust of the plaintiff's case has been towards consideration of s 34(2)(b). 26 I am not satisfied that the accusation of the plaintiff of the offences charged was not made "in good faith". 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." 27 In the present case Det. Sgt Brazier, who has the conduct of this matter for the New Zealand police, was cross examined before me on his affidavit and that cross examination did not establish absence of good faith in the pursuit of the accusations against the plaintiff. 28 The focus of Mr Jones' submissions under s 34(2) was on the concept of "the interests of justice" in sub-s (2)(b). 29 There was only one other submission advanced by Mr Jones to the following effect:

(i) that these proceedings are in the nature of criminal proceedings: see Brackenridge v New Zealand (unreported, Court of Appeal (Qld), 2 October 1988); and

(ii) that the charges should be regarded as representative charges. 30 This being so, it was submitted that it would be unjust to require the plaintiff to return to New Zealand to answer to these charges. Reference was made to Bannister v New Zealand [1999] FCA 362. 31 However, in the course of submissions Mr Jones conceded, to my mind properly, that the charges in the warrant were not representative charges, and this submission was abandoned. 32 Accordingly I now turn to consider the basis upon which it was submitted the magistrate's order should be quashed.

The interests of justice 33 Mr Jones submitted, adopting expressions in Willoughby v Eland (1984-85) 59 ALR 147 at 152 and Bates v McDonald at 95, that the defendant's accusations against the plaintiff are "wholly misconceived", that they "cannot possibly be right", and that it is "demonstrably clear that the proceedings could have no foundation at all". 34 The nub of the submissions so carefully and thoroughly pursued by Mr Jones is that the evidentiary basis for the accusations made against the plaintiff is so deficient that it would be unjust to permit the plaintiff's extradition. In advancing that submission he relied upon the following statement of principle in New Zealand v 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 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 at 102; Lewis v Wilson; Binge v Bennett at 585; Butler v Morahan (1988) 94 FLR 372." 35 The affidavit evidence of the defendant disclosed that police in New Zealand intercepted and recorded a conversation that took place allegedly between the plaintiff and another man at premises at 80 Fairburn Road, Otahuhu, pursuant to a warrant issued in the High Court in Auckland. The defendant's contention is that the conversation so evidenced inculpated the plaintiff concerning the offences specified in the subject New Zealand warrant. In his affidavit evidence Sgt Brazier expressed his belief that this intercepted conversation sufficed to charge the plaintiff. In his affidavit the Federal Police Officer, Simon Penny, referred to this same conversation as "the basis of the charges laid in New Zealand against [the plaintiff]". 36 A copy of the CD ROM which it was claimed recorded the intercepted conversation was tendered by the defendant as Exhibit B and on the plaintiff's application it was played in Court. Mr Jones submitted that the CD ROM did not record that which the defendant has alleged it to have recorded. There are before this Court three transcripts purporting to set out what is recorded on Exhibit B. The first of these transcripts is what Sgt Brazier described in evidence as "a working transcript" which he said was relied upon for the affidavit used to secure the issue of the warrant. This is the transcript which forms an annexure to the affidavit of this police officer sworn on 5 November 1998, which affidavit is itself an annexure to the affidavit of the same deponent sworn on 4 May 1999. The second transcript, admitted into evidence as Exhibit C, is what Sgt Brazier described as "the evidentiary transcript" which will be relied upon in court in New Zealand in the event the plaintiff is extradited. The third transcript is an annexure to the affidavit of Leigh Johnson, and is a transcript taken from a copy CD ROM served upon the plaintiff. These transcripts differ, and it is to be inferred that the differences reflect differences in what was heard by those responsible for the typescripts. Of course none of these transcripts affords independent evidence of what is on the relevant CD ROM, still less does it afford independent evidence of the intercepted conversation. If, ultimately, the plaintiff stands trial, the jury will no doubt be instructed as to the limited use to which such a transcript can be put, presumably consistently with the statement of principle to be found in Butera v Director of Public Prosecutions (1987) 164 CLR 180. 37 Mr Jones submitted that now that I have heard the CD ROM played, I would find that it does not evidence the plaintiff's criminal participation in drug related activity so as to support the charges set out in the New Zealand warrant. 38 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. 39 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'." 40 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. 41 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. 42 In my opinion none of those responses tips the scales in the plaintiff's favour. 43 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." 44 Those dicta are particularly apt in the present circumstances. 45 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). 46 I order the plaintiff to pay the defendant's costs of the summons. **********

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