Consideration
35 It appeared not to be in issue in this review that it remains the position that the first respondent has to demonstrate that grounds exist for his release which engage s 34(2). My consideration of whether such grounds exist can be informed by the reasoning and conclusion of the Magistrate. I should, at this point, make one observation about his Honour's reasoning. The Magistrate appears to have been influenced and possibly significantly influenced by the additional delay in seeking the extradition of the first respondent occasioned by the New Zealand police's decision to effectively suspend the investigation while the first respondent stood trial in New South Wales. The Magistrate's reasons suggest his Honour thought this delay was unnecessary and perhaps even disapproved of the police's decision. His Honour described an aspect of it as being regrettable.
36 In my opinion, the Magistrate probably placed too much weight on the reason for this further delay and that it may have been, in whole or in part, avoidable. The authorities which address the cause of the delay referred to in Sackville J's proposition (vii) in Venkataya (set out at [28] above) suggest that unless the delay is caused by the person whose extradition is sought (in which case the fact of delay will be less telling presumably because any oppressive effect is of that person's own making), the cause of the delay is less important than its consequences. To put it this way reflects the way s 34(2) is framed. It invites consideration of whether "a lengthy period has elapsed". That is, it invites consideration of the extent of the delay and not its cause. The substance of what needs to be considered is the fact that the delay between the time of the alleged offences and the time extradition is sought is, at this point, over 30 years.
37 Before returning to consider this question of delay, it is appropriate to consider a number of submissions of the first respondent seeking to impeach the extradition process. They are, in a sense, threshold issues. It may be recalled that the Magistrate rejected a submission that the extradition request, if I can so describe it, was not made in good faith or in the interests of justice. I put it this way because it was common ground (supported by authorities) that the "accusation" referred to in s 34(2)(b) calls for consideration of the decision of the police, in this case, to lay charges against a person whose extradition will be required for the prosecution of those charges.
38 The first respondent challenged the bona fides of Detective Stickland. The officer was cross examined before the Magistrate but not in the review. It was said on behalf of the first respondent that, in effect, the cross examination would have been more robust (and perhaps by implication, more effective) if the complainant's social welfare file (tendered in evidence in the review) had been available to the first respondent. In cross-examination Detective Stickland was asked whether there were, in the file, statements from social workers expressing "a disbelief" in relation to the complainant. Part of his answer was that "I don't know that there is necessarily anything written by the social worker to say that they disbelieve what was said".
39 It is undoubtedly the case that the file contains quite a number of entries in which the person creating the file note either expressed a personal view that the complainant exaggerated or did not always tell the truth or recorded someone else expressing that view including teaching personnel from the complainant's school. However, in fairness to Detective Stickland, it should be noted that the next question was "In fairness to you you sound quite vague about it, that's presumably because you don't have the file?" to which the detective agreed noting that as it was a large document he did not have with him. In my opinion, there is no basis to assume that if Detective Stickland had had the file in his possession or had been shown the entries to which my attention was drawn, he would have adhered to this answer or even given it in the first place.
40 What is probably more important is the broader attack made by the first respondent having regard to the contents of the social welfare file and the entries which assert the complainant's propensity to exaggerate and lie. Some entries referred to by the first respondent were said to demonstrate the complainant actually lied. The broader attack was to the effect that these recorded characteristics of the complainant were so damning that the complaint she made of sexual assault should have been approached with such caution and reserve that the charges should not have been laid. This demonstrated "the accusation" was not made in good faith or in the interests of justice: see Sackville J's proposition (i) in Venkataya (set out at [28] above). On the first respondent's approach, this conclusion was said to be fortified by the fact that one potential Crown witness (one of the complainant's sisters) whose evidence was to be relied upon in the prosecution of the first respondent, had given false evidence in the unsuccessful prosecution of the first respondent in the New South Wales criminal proceedings. It was also said to be fortified by a statement from another sister which involved a wholesale rejection of the complainant's account of her relationship with the first respondent and which challenged details of the specific complaints of sexual assault.
41 The reason why I consider this argument should be rejected is that even though there are entries which assert the complainant's propensity to exaggerate and lie, there are other entries in the social welfare file which record that the complainant, as a girl, was complaining that her stepfather was engaging in inappropriate conduct involving sexual molestation. That is, her complaint made to the police in early 2006 was not the first complaint she made and she had, in fact, been making complaints to the same effect in the 1970s. It is true that at least one entry which records the complainant's accusations against her stepfather were investigated by the police who, one can infer from the entry, concluded there were no grounds for prosecuting the first respondent. Why and on what basis this conclusion was reached is not known. What is more important, in my opinion, is that there were contemporaneous complaints concerning the first respondent's conduct though I do not use the word contemporaneous in an evaluative sense associated with the admissibility of evidence that the complaints were made. Armed with this information from the file of contemporaneous complaints and the potentially corroborative evidence of one of her sisters and her brother, it cannot be said that the decision to charge the first respondent was not made in good faith or not made in the interests of justice notwithstanding the entries about the complainant's propensity to exaggerate and lie.
42 Another threshold submission on behalf of the first respondent was that the first complainant had been charged with the wrong offence. This has not been demonstrated. It was a submission based on the terms of a New Zealand statute of some antiquity. Only extracts of the statute are in evidence. It would, in point of principle, be wrong for me to express a view about the operation of the statute when only parts of it are in evidence and probably wrong to do so without some further explication of how the statute operated during its currency.
43 I now turn to the question of delay. Plainly "a lengthy period" has elapsed for the purposes of s 34(2)(c). That is the starting point. The critical question is whether having regard to that lengthy period, it would be unjust or oppressive or both to surrender the first respondent. The first respondent approached this topic by identifying "actual prejudices" and "potential prejudices". I am content to adopt the same expressions and approach. I first consider whether it would be unjust.
44 The first actual prejudice was that as the complainant's mother had died in 2004, the first respondent had lost the opportunity to call her to give evidence. In this context, the first respondent notes that the complainant said in her statement to police that she had complained to her mother after the very first offence was committed (on 3 August 1973 involving alleged indecency with a girl under twelve by kissing the complainant, touching her breasts and inserting his finger into her vagina, a similar charge based on the first respondent inserting his penis in the complainant's mouth and lastly raping the complainant). The complainant also said her mother told her that she would give the first respondent "the benefit of the doubt".
45 Three other actual prejudices arise from the same circumstances, namely the inability of the first respondent to call the complainant's mother. One concerns the complainant's account that the sexual abuse was like clockwork, the first respondent was constantly having sexual intercourse with her, every time it happened she would tell her mother again that "he touched me" and the mother would say she would talk to him but she would give him the benefit of the doubt. The second concerns the complainant's account that she complained to her grandmother (her mother's mother) who confronted the first respondent who assaulted the grandmother. The third was the complainant's account that her mother "procured the complainant into prostitution".
46 Two points can be made about these "actual prejudices". The first is that what the mother would say were she alive and called by the first respondent to give evidence remains, as the Magistrate pointed out in his reasons, a matter of speculation. It is true that in the social welfare file some entries indicate that the mother shared the view held by others that the complainant exaggerated and lied. But it is also true, as noted earlier, that contemporaneous complaints had been made by the complainant about sexual interference by the first respondent. It cannot be assumed, for the purposes of these proceedings, that the mother was unaware of these complaints. It cannot be said, as the first respondent appeared to submit in written submissions to the Magistrate (relied on in this review) that the complainant's evidence (assuming it is given) that she complained to her mother would be successfully challenged if the mother had been able to give evidence.
47 The next actual prejudice is said to arise because of the first respondent's inability to call teachers at the complainant's school and social welfare workers to give evidence about the complainant's propensity to exaggerate and lie. Another actual prejudice flowed from the fact that Detective Strickland was only able to trace medical reports with local doctors back to 1982.
48 What I understood to be the last actual prejudice concerned the inability of the first respondent to call the complainant's grandmother (her mother's mother). In the social welfare reports is an entry recounting a conversation between a social worker and the grandmother in 1978. It records that the grandmother said the complainant had a bad habit of telling lies to her neighbours about family life which often embarrassed her (the grandmother). The grandmother is also recorded as going on to say that she had discussed this with the complainant but she seemed unable to realise the importance of spreading family secrets. The inability to call the grandmother is also advanced, as I understood the submission, in relation to a matter mentioned earlier, namely the complainant's account that she complained to her grandmother who confronted the first respondent who assaulted the grandmother.
49 Again the difficulty with these remaining "actual prejudices" is, with one important qualification I discuss shortly, that they involve speculation as to how any trial of the first respondent would have unfolded and what the evidence which is now unavailable (either documentary or from witnesses) would have been and, in particular, whether it was admissible and, if so, supportive of the first respondent's defence.
50 I accept that it is not appropriate to approach the issues in this matter by applying principles or precepts deployed in determining applications to stay criminal proceedings because of delay. Nonetheless observations in authorities dealing with such applications are apt to apply in a case such as the present. One such authority is R v Adler (unreported, Court of Criminal Appeal of New South Wales, 11 June 1992) where Gleeson CJ observed (at 4):
The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial…
51 Another is the recent judgment of the High Court of Australia in R v Edwards (2009) 83 ALJR 717 which concerned the loss of monitoring records and relevant evidence on an aircraft's flight data recorder. The incident, the object of the investigation, took place on 23 October 2001. Delays in prosecuting the offences occurred between April 2002 and March 2004. The proceedings were not listed for trial until 21 November 2006 and this listing was adjourned. An application for a stay was listed for 26 November 2007 based on the loss of "primary technological evidence". It was held at [33] that no feature of the delay justified taking "the extreme step of permanently staying proceedings on the indictment as it had not been established that any prejudice could not be addressed." At [31] the Court said:
The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
52 A number of "potential prejudices" (in some limited ways repetitive of the "actual prejudices") which had been identified at the written submissions to the Magistrate were relied on in the review. The first class of "potential prejudices" concerned the first respondent's inability to call a number of witnesses because they had died (one neighbour and an uncle of the complainant). The second class of "potential prejudices" concerned other potential witnesses who, if they were alive, could be located (and if not that was a potential prejudice) and were available, would be witnesses from whom the first respondent would not be able to elicit meaningful evidence because of the passage of time (including other neighbours, an aunt of the complainant, the principal at the complainant's school and social workers). Another class of "potential prejudices" concerned documents the first respondent would now be unable to obtain and tender as evidence which might support his defence (including doctor's records, taxi records (when, on the complainant's account, her grandmother was allegedly picked up by a taxi after the alleged assault by the first respondent), documents establishing he commenced work early and before the complainant's mother left the house, and finally hospital records (concerning a period when the complainant contended her mother was in hospital and in which she was sexually abused by the first respondent)).
53 The observations I earlier made about the "actual prejudices" apply equally to these "potential prejudices" and I do not repeat them.
54 I referred at [49] to an important qualification. It is this. As noted earlier, in the extracts of the complainant's social welfare file there are a considerable number of entries which record that the author of the entry (on occasions the entry records the author as a social worker) believed the complainant lied or exaggerated or recorded that others (including teachers from the complainant's school) held a similar view. Quite apart from whether people who held these views could have been called at a trial by the defence to give evidence had the trial taken place shortly after the alleged offences occurred (which I would very much doubt), the events and circumstances which were foundational to these opinions could, potentially, have been (and would still be) an important element, and possibly critically important, in the cross-examination of the complainant at a trial then and now, at any trial which occurred if the first respondent was now extradited. That is, her credit could have been attacked and potentially significantly undermined by cross examination focused on the events and circumstances which led others to form the view that she had a propensity to lie or exaggerate. As a practical matter, the first respondent or any lawyers he might retain now, some 30 years later, have no capacity to investigate these events and circumstances.
55 The task of determining whether it would be unjust to surrender a person is not narrowly focused. As Mohr J noted in Perry v Lean (1985) 39 SASR 515 at 530:
The concept of injustice or "unjust" is not confined to the appellant. This concept needs to be considered in the wider concept of justice taken as an entire concept including the general interest of the community as a whole in having persons charged with serious crimes brought to trial.
It is at least implicit in the observations of Sackville J in Venkataya and the Full Court in Bannister quoted earlier that in cases involving the alleged sexual assault of children quite legitimate reasons can explain why a very considerable period may have elapsed between the time the alleged offences took place and the time the alleged perpetrator is charged and, in appropriate cases, exposed to extradition proceedings. Probably also implicit in the observations is that having regard to those legitimate reasons a very long period of delay should not, in the ordinary course, frustrate the extradition and trial of an alleged perpetrator in circumstances where the complaint of sexual assault was first made to police many years after the alleged assaults occurred. To allow such delay to operate to deny the trial of alleged child sexual offenders would offend against wider concepts of justice and the general interest in this and other communities in having such people brought to trial. For my part, this is undoubtedly correct. It is comparatively obvious that this was also the view of the Full Court in New Zealand v Moloney.
56 In the present case, Detective Stickland pointed to this issue in an affidavit supporting the extradition of the first respondent. He deposed to the fact that in his experience in working with allegations of this nature, it is the norm for children not to disclose the abuse at the time of the offending. Also the complainant explained in her statement to the New Zealand police that the reason why she reported the matter after so many years was because she had heard the allegation that the first respondent had sexually assaulted D(f)'s child, the first respondent's granddaughter, and that he needed to be stopped. However the difficulty, in this case, is that the extracts from the complainant's social welfare file reveal that at some stage comparatively shortly after the alleged assaults took place, the complainant did complain about the assaults, they were investigated by the police but no prosecution eventuated.
57 It seems to me that in these probably quite unusual circumstances the consideration of whether the extradition of the first respondent would be unjust has to be informed by the fact that the extremely long delay of over three decades before the present complaint was made and charges laid was not the product of a victim of sexual assault as a child being unable to ventilate a claim of criminal sexual abuse until many years had passed and the victim was sufficiently resilient to do so. I do not, and indeed cannot, refer to the earlier police investigation as having some bearing on whether the first respondent committed the offences with which he is charged. Addressing the issue is no part of the role of the Court in proceedings of this type. However it is relevant, in my opinion, to how I evaluate the impact of an extraordinarily long delay on the capacity of the first respondent to defend the charges if he went to trial in New Zealand.
58 For reasons which I explained earlier at [54], I consider that the first respondent would be actually prejudiced in his defence because of the delay and, in the result, it would be unjust for him to be surrendered.
59 I now turn to consider whether it would be oppressive to surrender the first respondent. The main changes in his circumstances that have taken place since the alleged offences relate to his health, his marriage, residency, financial status and employment.
60 The applicant tendered a report of Dr Craig Lilienthal, dated 5 July 2010, in which a number of medical reports and certificates issue by the first respondent's general practitioner Dr S Chaugule and various specialists were considered. Dr Lilienthal was the doctor chosen by the applicant to prepare a medico-legal report. The summary of the report was as follows:
Mr Brian Johnston suffers from multiple health problems (co-morbidities). Taken individually and even collectively, none of Mr. Johnston's medical conditions would, in my opinion preclude him from international travel to New Zealand.
However, given his beliefs, I would have concern for his emotional well being if he were removed from his current domestic and therapeutic environments.
The final paragraph related to Dr Lilienthal's assessment of the first respondent's anxiety and depression. It was stated at page 6 of the report, "However, I would have significant concerns for his mental health should the events about which he has concerns, actually eventuate." Earlier in the report at page 5, Dr Lilienthal found Mr Johnston to be depressed, although he did not perform any formal assessment of the severity of his depression. The doctor stated:
I believe his depression relates to (a) his prior knowledge and experience of the prison system, past and recent; (b) the complexity of his current medical conditions; (c) the effects of a successful extradition order and criminal charges in another country - on himself and his wife's circumstances.
61 Further evidence concerning the health of the first respondent was furnished by him, including a copy of a letter from Dr S B Chaugule of 3 April 2010. This indicates that the first respondent is suffering from eight different ailments, including hypertension, hypercholesteremia, gouty arthritis in the knee joints and feet, osteo arthritis in the cervical spine, lumbar sacral spine and the shoulder, bilateral olecranon bursitis operated on about six months ago, an enlarged prostate and "severe external hemorrhoids". There are 12 different medications listed. Dr Chaugule also said "He is in a serous state of anxiety and depression", and the doctor reported that the first respondent has had to take some sedatives to enable him to sleep because he has been worried about his problems and his financial situation. Additional correspondence furnished by the first respondent included letters from Dr Denis S Crimmins, Consultant Neurologist dated 19 March 2010 and 23 April 2010 which indicated he is being treated for sensory peripheral neuropathy. A letter of 17 May 2010 from Dr Stephen E G Ruthven, Urologist reported that the first respondent is suffering from "outflow obstruction" for which he may need catheterisation and he will undergo examination at the public hospital when a bed is available. Dr Ruthven indicated that the first respondent would be able to travel unless the symptoms became severe.
62 On 29 August 2009 the first respondent married J, a Chinese national who had arrived in Australia on 12 April 2009 on a student guardian visa to accompany her daughter who is in Australia on a student visa. The affidavit of J, dated 22 July 2010, indicates she was granted a Bridging Visa E on the expiration of her guardian visa and an 820 Partner Visa application was lodged on her behalf on 14 October 2009. The first respondent is her proposed sponsor for the 820 Partner Visa. Her application for permanent residence in Australia is still being processed.
63 J said that she did not know anything about the charges laid against the first respondent. When the first respondent was arrested and detained she went to stay with the first respondent's sister because she had been informed that she would be unable to remain in their current home (the Housing Commission flat) as she does not have residency.
64 In an affidavit, dated 26 July 2010, Fiona Lee McCullough, Director, Partner (Temporary) Migration of the Department of Immigration and Citizenship said for J to be eligible for a permanent residency, she would have to demonstrate that she is in a genuine relationship with an Australian citizen or permanent resident and she would have to satisfy a range of other criteria. At [9] she said that regulation 1.20(2)(c) is specifically relevant in this case where the sponsor, the first respondent, must commit to assist the applicant "to the extent necessary" financially and with regard to accommodation for the period of two years immediately following the grant of the visa. Ms McCullough said at [16] that any decision to extradite the sponsor to New Zealand would not be directly relevant because residence in Australia is not a criteria applied when assessing the sponsorship. Ms McCullough said that the first respondent "has not provided sufficient information as yet however to determine his capacity to provide financial support to the applicant, either in Australia or outside Australia." At the hearing, Ms McCullough explained that the visa that J currently holds, the Bridging Visa E, allows her to remain in Australia pending the outcome of her application but does not permit her to return if she chooses to leave the country. A new application for entry would be required. In cross examination by counsel for the applicant, Ms McCullough was not able to say definitively that J would be granted a visa permitting re-entry, assuming Mr Johnston was extradited to New Zealand and she chose to follow him. She suggested, however, that in the event J's application for permanent residency was assessed as likely to succeed , then her re-entry might be facilitated.
65 As noted earlier, the first respondent and his wife have been residing in a Housing Commission unit. The first respondent has lived there for about 13 years until his arrest. It appears to be the case that if he is absent from his home for a period of more than three months the tenancy will either be terminated or transferred to another eligible person. An email from Ms Frances Kirkland, A/Housing Manager, Housing NSW, dated 19 November 2009 is in evidence. Ms Kirkland referred to Policy: Absence from Dwelling - E8T0039A which states that if a client is going to prison they can apply to retain the tenancy for up to three months. At the end of that time if the tenant has not been released from prison the tenancy should be transferred to another household member living in the tenancy or the tenancy is to be terminated. Ms Kirkland indicated that J would not meet the eligibility critera for succession to the tenancy, particularly as she is currently on a bridging visa and is not entitled to Centrelink benefits or employment. J would only be able to re-occupy the premises when the first respondent is released and is able to support her financially. The first respondent also would not meet the acceptable reasons for being absent for up to six months. He would only be able to apply and be assessed for housing priority tenancy reinstatement and, if approved, the first respondent would be rehoused within approximately 3-6 months. Mr Kirkland was unable to predict how long it would take for the first respondent to be rehoused on the Central Coast because it is an area in high demand.
66 The allegations against the first respondent of child sexual abuse are extremely serious. They concern what the Magistrate rightly characterised as heinous allegations. But a lengthy period has elapsed since the offences were alleged to have been committed. Since then the first respondent's circumstances have changed and this needs to be considered in the context of the delay and in the context of whether extradition would be oppressive. The first respondent has lived a settled and substantially crime-free life on the Central Coast for at least the past 13 years. He is now nearly 70 years of age and is in poor health. While it would be possible for him to travel to New Zealand, the evidence indicates that extradition would impact on his mental and emotional health. The first respondent's prospects of employment are limited and it appears that he would lose possession of his Housing Commission unit. If extradited, he would be separated from his wife or if she was to accompany him it would expose her to the risk of not being able to re-enter Australia with him if he was acquitted.
67 However, in my opinion, I should adopt a fairly robust approach to the effect of extradition on a male of advancing years charged with child sexual assault, such as the first respondent. To do otherwise would defeat the prosecution of child sexual offenders which often arise in the circumstances described in [55] and [57] above. As Madgwick J observed in New Zealand v Mahoney (as noted at [30]), hardships of the type identified by the first respondent would "pale into insignificance .... against the strong legitimate public interest in both Australia and New Zealand in having the charges dealt with in New Zealand". I am not satisfied that would be oppressive to surrender the first respondent to New Zealand.
68 In his concluding observations in Venkataya, Sackville J observed that "this is a difficult case". This case is no less difficult. I have concluded that the first respondent should not be surrendered to New Zealand as to do so would be unjust though not oppressive. The application for review should be dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.