Kisun v New Zealand

The legislative regime 4 In New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250, a five-member bench of this Court considered the operation of the statutory scheme, the effect of which is concisely summarised in Coates-Kelly v New Zealand [2022] FCAFC 131; 294 FCR 422 at [24]-[34]. It is convenient to reproduce and adopt that summary in Coates-Kelly: [24] Before addressing the arguments raised by Ms Coates-Kelly in these proceedings it is appropriate to first outline the statutory scheme in the Extradition Act, which sets out the procedure and governs the process of making an application to extradite a person from Australia to New Zealand. It is trite to observe that it is in the context of the statutory scheme which the interlocutory application, the appeal and the claim in the original jurisdiction must be addressed. [25] In New Zealand v Moloney (2006) 154 FCR 250 (Moloney), a five member bench of this Court considered the operation of the statutory scheme. [26] In summary, as explained in Moloney at [2]-[3], Pt III of the Extradition Act makes specific provision for extradition from Australia to New Zealand. The process is analogous to extradition within Australia whereby all that is required is the production of an indorsed warrant. Section 28 of the Extradition Act provides for the indorsement of a New Zealand warrant by an Australian magistrate, thereby authorising the execution of the warrant in Australia by any police officer. New Zealand must merely make an application in appropriate statutory form and produce affidavit evidence that the relevant person is suspected to be in, or on his or her way to, Australia. Hence, there is no need for New Zealand to produce any evidence in support of its application. This procedure is often referred to as a "backing of warrants" procedure. The history and effect of the procedure is succinctly summarised in Moloney at [17]-[23]. [27] Nonetheless, s 34(2) provides that if a magistrate is satisfied by a person arrested on an indorsed New Zealand warrant that for one of the reasons specified 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. Section 34 is in the following terms: 34 Surrender warrants (1) Where: (a) either: (i) a person has been remanded after being arrested under an indorsed New Zealand warrant; or (ii) a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person; and (b) a request is made to a magistrate or eligible Judge by or on behalf of the person or New Zealand for proceedings to be conducted under this section; the magistrate or Judge shall, unless the magistrate or Judge makes an order under subsection (2): (c) by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand; and (d) by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison. (2) If the magistrate or Judge 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 or Judge shall order that the person be released. (3) The magistrate or Judge shall, after making an order in relation to the person under paragraph (1)(c), inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 35. (4) In the proceedings under this section, the person is not entitled to adduce, and the magistrate or Judge 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. [28] As is apparent, the magistrate cannot receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence: s 34(4). [29] As recognised in Moloney at [24], "the fact that extradition from Australia to New Zealand is done by a simple backing of warrants is obviously relevant when considering the circumstances under which s 34(2) can be invoked." [30] It is clear from the statutory scheme that the procedure to extradite a person to New Zealand in Pt III is much more straightforward and less onerous than extradition to other foreign states, which is addressed in Pt II of the Extradition Act. Most obviously, for extradition to New Zealand, there is not even a need for the requesting country to provide "supporting documents" of the type required for extradition to other foreign states: cf s 19(2) and (3). Unlike the position in relation to some other countries, New Zealand is not required to provide prima facie evidence of guilt: Moloney at [28]. The process of extradition to New Zealand does not contain a speciality requirement or assurance which applies to Pt II extraditions, which limits the offences with which a person can be dealt with on return to a requesting country: cf ss 22, 24 and 42. Further, none of the various extradition objections set out in s 7 of the Extradition Act applies to the process for extradition to New Zealand. Therefore, a person cannot resist extradition on the basis that: the offence is a "political offence" within the meaning of s 7(a); extradition is sought for an improper purpose, as set out in s 7(b); the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of race, religion, nationality or political opinions, as specified in s 7(c); the dual criminality requirement is not met, as specified in s 7(d); or the person may be exposed to double jeopardy, contrary to s 7(e). [31] The only statutory bar to extradition to New Zealand is found in s 34(2): Moloney at [30], [38]. [32] The Court in Moloney concluded at [36]-[37]: [36] … The fact that the backing of warrants, without more, is regarded as sufficient, itself demonstrates confidence in the integrity of the New Zealand criminal justice system. [37] Even apart from the special arrangements that govern extradition from Australia to New Zealand, the close relationship between our two countries, and the respect and high regard with which New Zealand courts are held in Australia, would support an assumption of fairness. Section 34(2) must be understood in the light of that assumption." [33] A finding of injustice is not made lightly: Moloney at [35]. The expression "unjust" is directed primarily to the risk of prejudice to the person in the conduct of the trial, and "oppressive" is directed to hardship to the accused resulting from changes in the person's circumstances: Moloney at [65]-[66]. [34] A review of a magistrate's decision is to this Court in its original jurisdiction, which is conducted by way of rehearing: s 35(1) of the Extradition Act, and see s 35(6)(d). If a person, or New Zealand, wishes to appeal from the order made as a result of the review, they can appeal to the Full Court: s 35(3). In conducting that appeal, the Court "to which the appeal is made shall have regard only to the material before the court that conducted the review": s 35(6)(e). 5 There is no dispute that the terms of s 34(1) had been satisfied in relation to the appellant, making an order for his surrender to New Zealand mandatory unless an order for his release was made under s 34(2). The chapeau to s 34(2) makes it clear that it was for the appellant to satisfy the primary judge that instead of being surrendered he should be released. That also provides no basis for imposing any evidentiary burden on New Zealand. 6 The appellant's case before the magistrate and the primary judge was that, in light of the lengthy period that has elapsed since the alleged offences were committed, it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand: s 34(2)(c). The primary judge was not satisfied that the appellant had established that was so.

Before the primary judge 7 The reasons of the primary judge are lengthy and detailed, mainly due to the need to resolve factual disputes as to what the medical and related evidence established. There is no challenge to the factual findings that his Honour made. Accordingly, for present purposes a brief summary will suffice. 8 The appellant is now 78 years of age. The offences are alleged to have taken place when he was in his 20s and early 30s. His case for seeking his release rather than surrender to New Zealand turned on his physical and mental health. He sought to establish that he suffered from vascular dementia. The primary judge, while expressing a genuine concern that the appellant may well suffer from that condition, was not satisfied that this had been established. His Honour was satisfied on the medical evidence before him that the appellant had profound or significant cognitive impairment. 9 The primary judge was also satisfied that the appellant has type 2 diabetes, psoriasis, long term effects from having had quadruple bypass surgery, was frail, was unable to walk safely without a frame and is unable to look after himself. 10 As to the effects of extradition, the primary judge accepted that being transferred by plane to New Zealand would not be good for the appellant's mental health, being confusing and stressful, and was likely to cause some deterioration in his mental health, but found this was relatively minor as the flight is only a couple of hours and did not amount to oppression. 11 In relation to what would happen upon arrival in New Zealand, the primary judge found that: (a) if bail was refused, that would likely worsen the appellant's cognitive impairment; but if bail was granted, either: (b) he would be unable to look after himself; or (c) great strain would be placed on his family in relocating to New Zealand to look after him. 12 Of these outcomes, the primary judge found that: (a) refusal of bail, or (b) the grant of bail without a family member being available, would involve oppression arising from unreasonable delay of four and a half years, which had directly contributed to him now being in a serious condition, but that (c) the grant of bail with a family member being available to take care of the appellant would not involve delay-related oppression. 13 The primary judge ultimately concluded that there was an absence of evidence by which he could determine which of these three outcomes would occur, or even that this was the true universe of possibilities. That is, oppression was not proven to be the more probable outcome. Upon this basis, his Honour found that the appellant had not established the oppression limb of s 34(2). His Honour rejected an argument that it was incumbent on New Zealand to adduce evidence about how that prison system in that country deals with elderly cognitively impaired prisoners on remand, because the burden of proving oppression rested on the appellant.

The grounds of appeal and the nature of the appeal 14 The grounds in the appellant's amended notice of appeal are as follows: [1] The trial judge erred in determining that it was necessary to find, on the balance of probabilities that the Appellant had vascular dementia thereby failing to take into account a real possibility he did suffer from this condition. [2] The trial judge erred in failing to find that it would be "unjust, oppressive or too severe" a punishment for the Appellant to be extradited in circumstances where: (a) there was a real possibility that he would be remanded in custody: and/or (b) even if granted bail, there was a real possibility that he could not be cared for by his family. [3] The trial judge erred in determining that it was not unjust, oppressive or too severe a punishment for the Appellant to be extradited notwithstanding his unfitness to stand trial and ill-health because those matters may be taken into account by a New Zealand judge. [4] The trial judge erred in the evaluative process of determining whether the Appellant should be extradited by failing to take into account the First Respondent's failure to adduce any evidence on: (a) what would occur in respect of any bail application brought by the Appellant in New Zealand; and (b) the Appellant's living conditions were bail granted in circumstances, where the First Respondent was the only party capable of calling evidence on these subject matters. [5] The judgment confirming the decision of Magistrate McRobert was legally unreasonable in the circumstances. 15 In Newman v New Zealand [2012] FCAFC 133; 206 FCR 1, Siopis, Greenwood and Logan JJ observed at [29]: An appeal from a court exercising the review jurisdiction under s 35 of the Act is an appeal in a strict sense: Johnston at [22]. It is not for us, on the basis that we might have made a different factual value judgment if conducting that review, to interfere with his Honour's conclusion that he was not satisfied that it was "unjust or oppressive or too severe a punishment" to surrender Mr Newman to New Zealand. In an appeal of the kind described, the Full Court's task is to correct error. If the conclusion on the facts were so unreasonable that it could not have been made reasonably error would be present. That is not this case. 16 It is in that context that the grounds of appeal must be addressed.

Ground 1 17 The appellant submits that, given the finding by the primary judge that there was a real possibility that the appellant suffers from vascular dementia, his Honour erred in excluding that possibility from the evaluative process under s 34(2). 18 The appellant relies on statements in Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442 (Gaudron and Hayne JJ) and Johnston (Jacobson, Foster and Katzmann JJ) to make good his proposition that the evaluative process that the Court is engaged in does not necessarily involve findings of individual facts to the civil standard of proof, rather, matters can be brought into account as possibilities. 19 Neither Foster nor Johnston assists the appellant. 20 In commenting on the scope of the inquiry to determine whether surrender to a foreign country was "too severe a punishment", Gaudron and Hayne JJ stated in Foster at [42], in the passage principally relied upon by the appellant: In at least some cases, it may be that attention may have to be directed to what will happen to the eligible person after surrender, including not only the probable nature and duration of detention pending trial but also the punishment that would be meted out to the eligible person if convicted of the extradition offence. That is, it may be necessary, in some cases, to consider whether the punishment which would be imposed on conviction, in combination with factors such as incarceration in both countries (before extradition and before trial), involuntary transportation, and the expense and difficulty of defending a trial in the foreign country, would lead to a disproportionately heavy burden of punishment being imposed on the eligible person. It is not necessary to decide what are the kinds of case in which such considerations might arise and, given the generality of the words employed in reg 7, it would be unwise to attempt to do so in any exhaustive way. For the moment it is enough to recognise that the answer to the question whether it would be unjust, oppressive or too severe a punishment to surrender may, in some cases, be affected by what will be the consequences that will or may follow for the eligible person after conviction. 21 Their Honours were addressing a consideration of what may happen in the future, not determining whether an alleged past or present fact had been established and was to be taken into account in an evaluative exercise. 22 Similarly, the statements by the Full Court in Johnston at [137], [145], [150] and [155] that the appellant seeks to rely upon were directed at the consequences for a person if they were extradited to New Zealand. It was in that context that the Full Court referred to "speculation" and used the language of "quite possible", "could be", "quite likely" and "it may not necessarily be so". Again, the Court was not determining whether an alleged present or past fact had been established and was to be taken into account in an evaluative exercise. 23 No discernible error by the primary judge has been identified by the appellant. Any stated genuine concern entertained by the primary judge cannot gainsay a finding that the alleged fact, in this case whether the appellant suffers from vascular dementia, had not been proved on the balance of probabilities. 24 It was not only open to the primary judge to make this finding, but his Honour would have fallen into error had the unproved diagnosis of vascular dementia been taken into account in the evaluative exercise undertaken by the primary judge for the purposes of s 34(2). 25 Ground 1 must therefore fail.

Ground 2 26 Ground 2 contends that the primary judge erred in failing to find that the test in s 34(2) was not met in circumstances where it is asserted that there was a real possibility that the appellant would be remanded in custody, or, if he was granted bail, a real possibility that he could not be cared for by his family. This ground suffers from the following defects. 27 First, it does not address the third possibility identified by the primary judge, namely that the appellant would be released on bail and would be taken care of by a member of his family. 28 Secondly, the terms of s 34(2) required the appellant to establish that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand, not merely that this was a real possibility. The exception to mandatory surrender under s 34(1) required the primary judge to reach an actual state of persuasion, not something less than that. The onus imposed by s 34(2) could not be satisfied by the primary judge finding that there was a mere possibility of oppression, yet that is the substance of what the appellant seeks. 29 Thirdly, and in any event, the primary judge made no finding as to what was even the more likely possibility. To the contrary, his Honour adopted a characterisation that what was being advanced was no more than dubious assertions about the probability of essentially unknown events: PJ [135]-[136]. 30 There was no error on the part of the primary judge in declining to make an order under s 34(2) based upon only alternative possibilities. It follows that ground 2 must fail.

Ground 3 31 Ground 3 bears repeating because it assists in understanding the way in which it was argued: The trial judge erred in determining that it was not unjust, oppressive or too severe a punishment for the Appellant to be extradited notwithstanding his unfitness to stand trial and ill-health because those matters may be taken into account by a New Zealand judge. 32 The primary judge observed, based on Moloney, that the Court should proceed on the assumption that the judicial system in New Zealand will deal with the appellant justly. His Honour concluded that no relevant injustice to the appellant arises from requiring him to seek a permanent stay of the proceeding in New Zealand. Nor that there was any reason to doubt the justness of whatever New Zealand's approach is to persons who may not be fit to be tried: PJ [123]. Although this case is based on the oppression limb in s 34(2), his Honour correctly observed there is overlap between that and the injustice limb. Accordingly, the primary judge accepted that it followed that, exposure to the New Zealand justice system, in itself, is assumed not to constitute oppression. 33 The primary judge concluded at PJ [125]: The starting point therefore is the assumption that it is not oppressive for the purposes of s 34(2) to require Mr Kisun to undergo a bail hearing in New Zealand, or to seek a permanent stay on the grounds of the four-and-a-half-year delay in formulating the charges or even to undergo a trial on the indictment or some other process if he be unfit for trial. There is nothing before me to displace that assumption. 34 That is the background against which the primary judge addressed the submissions advanced to him. That is, whether extradition to New Zealand may nevertheless be oppressive for the purposes of s 34(2) for reasons which are entirely unrelated to the fairness of the New Zealand justice system. 35 The appellant submits that, the primary judge having found the appellant unfit to stand trial: That finding was sufficient for the conclusion that the Appellant had demonstrated injustice within the meaning of s34(2). Instead of finding that, the trial judge appears to have determined that finding was insufficient because of an assumption that it would be ameliorated in New Zealand. 36 The finding the appellant refers to above is the passage at PJ [81], where the primary judge stated: Having accepted that evidence, the only evidence before me is that Mr Kisun is profoundly or significantly cognitively impaired and impaired to the extent that if the question were whether he could stand trial in New South Wales, the answer would be no. (Emphasis added.) 37 The primary judge correctly recognised that the question was not whether the appellant was unfit to stand trial in New South Wales. That was not the issue. Rather, that passage reflects no more than a description of the degree of impairment. The appellant's submission, which then asserts the primary judge considered the finding insufficient because of an assumption that it would be ameliorated in New Zealand, appears to be based on PJ [123]. That submission misunderstands the finding, and the reasoning of the primary judge. The recitation of principles and the assumptions recited and applied by the primary judge reflect Moloney. The appellant has not challenged those conclusions. 38 The appellant's submission, as reflected in writing, is based on two propositions. First, that the finding at PJ [81] is in substance a finding of proved injustice or oppression. That is incorrect. Although the appellant orally submitted that the finding in PJ [81] formed a basis for concluding oppression, that is very different from asserting, as he has done, that PJ [81] is a finding by the primary judge of proved oppression and injustice. Second, that the respondent was obliged to lead evidence as to what would occur in New Zealand, and the assumption referred to in Moloney cannot be relied on, in the absence of such evidence. That is incorrect. That would undermine Moloney. In oral submissions, the appellant repeatedly contended that an obligation arose in this case because the issue of fitness for trial was "front and centre" in the proceedings before the primary judge. An obligation does not arise because the appellant chooses to conduct its case in a particular manner. Underpinning that submission is also the assertion that it is for the respondent to lead such evidence because it is uniquely in a position to do so. That submission reverses the onus of the application as set out in the chapeau of s 34(2). The appellant could have led evidence. The type of evidence he could have obtained is readily apparent. He did not adduce any such evidence. This circumstance, and New Zealand not having adduced such evidence, cannot change the statutory onus imposed upon him. 39 The appellant's submission fails to recognise the features of the extradition process to New Zealand. The object of extradition is to return a person who is charged with an offence (or convicted of an offence) to New Zealand to face trial or to serve a sentence, which includes the determination of whether a person is fit to be tried. The process for extradition is analogous to that within Australia, whereby all that is required is the production of an indorsed warrant. The fact that the backing of warrants, without more, is regarded as sufficient, itself demonstrates confidence in the integrity of the New Zealand criminal justice system: Moloney at [36]. 40 Ground 3 must fail.

Ground 4 41 Ground 4 also bears repeating to frame the argument advanced: The trial judge erred in the evaluative process of determining whether the Appellant should be extradited by failing to take into account the First Respondent's failure to adduce any evidence on: (a) what would occur in respect of any bail application brought by the Appellant in New Zealand; and (b) the Appellant's living conditions were bail granted in circumstances, where the First Respondent was the only party capable of calling evidence on these subject matters. 42 As noted above at [5], s 34(1) requires the magistrate, or the primary judge on review, to make an order by warrant for surrender to New Zealand if its terms are satisfied, subject only to the appellant satisfying the magistrate, or the primary judge on review, that instead an order for his release should be made under s 34(2). Thus, as already noted above, the appellant bore the onus of satisfying the primary judge that such an alternative order should be made. 43 The primary judge found that the outcome of a bail application in New Zealand could not be determined because it turned on the probability of essentially unknown events, such that his Honour could not conclude that the appellant had satisfied the oppression limb of s 34(2): PJ [135]-[136]. The appellant asserts that the primary judge erred in the evaluative process that led him to that conclusion by failing to take into account that New Zealand did not adduce evidence as to what the likely outcome of a bail application in that country would have been. As already observed above, New Zealand bore no onus in relation to what was required by s 34(2), nor any evidentiary onus related to that issue. 44 The appellant seeks to invoke common law principles dealing with shortfalls in evidence, in an endeavour to shift the onus of proof imposed upon him by the chapeau to s 34(2). He cites the tort case of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 at [58] (Kiefel CJ, Gageler and Jagot JJ), and the contract case of Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; 98 ALJR 719 at [129] (Edelman, Steward, Gleeson and Beech-Jones JJ). For the following reasons, that endeavour must fail. 45 In GLJ, the majority decision of Kiefel CJ, Gageler and Jagot JJ was to allow an appeal upon the basis that a civil suit for injury arising from child sexual abuse by a priest brought against his diocese should not have been permanently stayed as an abuse of process because it had wrongly been concluded that there could not be a fair trial due to certain evidence no longer being available. It was in that context that the majority, at [58] and following, considered the impact of the loss of that evidence over time and the process of assessment of the evidence that was available, including by way of the drawing of inferences. This reasoning provides no basis for shifting the onus of proof imposed upon the appellant by the plain terms of the chapeau to s 34(2), nor imposing any evidentiary onus on New Zealand. In any event, the absence of such evidence could not enable any inference to be drawn as to what the most likely outcome would be. 46 In Cessnock City Council, the issue concerned the assessment of damages for breach of contract by the council. A key issue in the High Court, relied upon by the appellant in this case, concerned the application of the principle of facilitation, via a presumption that the wronged respondent would have at least recouped its wasted expenditure if the contract had been performed. The plurality in Cessnock City Council at [129] described the principle as being in essence that when uncertainty as to a plaintiff's loss arises from a defendant's breach, the plaintiff can rely on other means to overcome that difficulty. In that case, a presumption of recovery of at least the wasted expenditure was available. This too provides no basis for shifting the onus of proof imposed upon the appellant by s 34(2), nor imposing any evidentiary onus on New Zealand. There was no available presumption as to what the outcome of a bail application would be. 47 Just because New Zealand might conceivably have been able to adduce evidence of what a court in that country might have done in relation to an application by the appellant for bail, that does not impose any onus to adduce such evidence, nor reverse or otherwise weaken the statutory onus imposed upon the appellant by s 34(2). It should be noted in any event that such evidence was going to be of doubtful worth in this case given the uncertainty as to the nature, extent and cause of the appellant's cognitive impairment brought about by the unsatisfactory and incomplete medical evidence before the primary judge on that topic, and the lack of evidence as to what the likely outcome of a bail application would be. A New Zealand court hearing a bail application would have to make its decision on the evidence that was before it as to the appellant's condition at that time. 48 Ground 4 must therefore fail.

Ground 5 49 Ground 5 asserts that the primary judge's decision was legally unreasonable in the circumstances. As advanced, ground 5 is fundamentally misconceived. The primary judge was not an administrative decision maker and therefore the judicial review ground of legal unreasonableness has no relevant application. 50 In any event, we are satisfied that the primary judge provided cogent reasons for his decision that he was unable to find that it would be oppressive to surrender the appellant to New Zealand. His Honour found neither the appellant nor New Zealand had sought to establish the position that the appellant would be in if he were extradited to New Zealand. Given the appellant bears the onus of establishing oppression for the purposes of s 34(2), the primary judge concluded that the appellant had not established the oppression limb of s 34(2) on the balance of probabilities. His Honour further found that it was not incumbent on New Zealand to elicit evidence of how the New Zealand prison system deals with elderly cognitively impaired prisoners on remand. 51 Further, we do not otherwise discern any error in the primary judge's statement of the relevant principles, recognition of the competing issues or factual findings. 52 Ground 5 must therefore also fail.

Conclusion 53 As all five grounds of appeal have failed, the appeal must be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromwich, Abraham and Halley.