New Zealand v Johnston

Federal Court of Australia (Full Court)|2011-01-11|Before: Dr J, Katzmann JJ

Queen (1989) 167 CLR 259 applied Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 applied New Zealand v Moloney (2006) 154 FCR 250 applied New Zealand v Venkataya (1995) 57 FCR 151 cited Perry v Lean (1985) 39 SASR 515 cited R v Adler (unreported, NSWCCA, 11 June 1992) applied R v Edwards (2009) 255 ALR 399 applied Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 followed

Date of hearing: 22 and 23 November 2010

Division: GENERAL DIVISION

Counsel for the Appellant: Dr J Renwick, Ms G Wright

Solicitor for the Appellant: Commonwealth Director of Public Prosecutions

Solicitor for the First Respondent: Mr E Conditsis of Conditsis & Associates

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1221 of 2010

JUDGES: JACOBSON, FOSTER AND KATZMANN JJ DATE OF ORDER: 11 January 2011 WHERE MADE: SYDNEY

The appeal be allowed.
The orders made by Moore J on 2 September 2010 be set aside.
The order made by the second respondent on 18 December 2009 be quashed.
A magistrate of the Local Court of New South Wales order, by warrant, that the first respondent be surrendered to New Zealand.
The first respondent pay the appellant's costs of the appeal and the appellant's costs of the review conducted by Moore J pursuant to s 35(1) of the Extradition Act 1988 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1221 of 2010

JUDGES: JACOBSON, FOSTER AND KATZMANN JJ DATE: 11 January 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 The appellant (New Zealand) seeks the extradition of the first respondent to New Zealand to stand trial on eight very serious charges involving the alleged sexual assault of his de facto wife's daughter in the period between August 1973 and June 1977. In these Reasons, we shall refer to the alleged victim as "A". In August 1973, A was 10 years old. She was born in June 1963. She is now 47 years of age. 2 The first respondent is a 69 year old Australian citizen who was born in Sydney and who now lives on the Central Coast of New South Wales in a house provided by the New South Wales Department of Housing. 3 On 22 June 2009, Judge Wade of the Manukau District Court (NZ) issued an arrest warrant for the first respondent. On 14 September 2009, a New South Wales magistrate indorsed the New Zealand warrant pursuant to s 28 of the Extradition Act 1988 (Cth) (the Act). 4 On 16 September 2009, the first respondent was arrested in New South Wales under the indorsed New Zealand warrant and was then remanded in custody. Bail was refused. 5 Over several days in November and December 2009, a New South Wales magistrate heard extradition proceedings in respect of the first respondent pursuant to s 34 of the Act. On 18 December 2009, the magistrate (who is the second respondent in the appeal) concluded that it would be oppressive to surrender the first respondent to New Zealand. Accordingly, the magistrate made an order pursuant to s 34(2) of the Act that the first respondent be immediately released. 6 On 4 January 2010, New Zealand applied to this Court pursuant to s 35(1) of the Act for a review of the release order which the magistrate had made on 18 December 2009. The learned primary judge heard that Application on 2 and 3 August 2010 and delivered his judgment on 2 September 2010 (New Zealand v Johnston [2010] FCA 958). On that day, his Honour dismissed New Zealand's Application for Review with costs. 7 The primary judge took a different view of the matter from that which had been taken by the magistrate. Although his Honour agreed in the result, his Honour did not think that it would be oppressive to surrender the first respondent to New Zealand but rather took the view that it would be unjust for him to be surrendered. 8 New Zealand appealed from that judgment on 22 September 2010. 9 New Zealand contends that the primary judge erred in the approach which he took to the concept of injustice in s 34(2) of the Act and also erred by failing to provide adequate reasons for the decision which he made. The first respondent has filed a Notice of Contention whereby he seeks to support the primary judge's ultimate decision by arguing that it would be unjust and oppressive (or both) for the first respondent to be surrendered to New Zealand. The first respondent also argues that the accusations upon which the extradition proceedings are founded were not made in good faith or in the interests of justice (as to which see s 34(2)(b) of the Act).

The Statutory Scheme and Some Relevant Principles 10 Under the Act, New Zealand is in a special position. Part III - Extradition from Australia to New Zealand (ss 28-39 of the Act) essentially assimilates the position of New Zealand to that which had applied to interstate extradition within Australia under s 18(6) of the Service and Execution of Process Act 1901 (Cth) (the Service and Execution of Process Act) prior to 1992. As the Full Court observed in New Zealand v Moloney (2006) 154 FCR 250 at [17] (p 256), the procedure for indorsement of New Zealand warrants by Australian magistrates under s 28 of the Act is often referred to as a "backing of warrants" procedure, although it is not described in that way in the Act itself. In Moloney, at [18]-[24] (pp 256-257), the Full Court explained the way in which the backing of warrants regime came to be incorporated into the Service and Execution of Process Act and related legislation. At [24] (p 257), the Full Court said: 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. 11 In Moloney, at [25]-[37] (pp 257-259), the Full Court explained the statutory scheme as follows: The statutory scheme 25 The provisions of the Extradition Act concerning the requirements for an extradition offence (s 19(1)), speciality (s 22(3)(d)), double criminality (s 19(2)(c)) and extradition objections (ss 7 and 19(2)(d)) apply only in relation to extradition from Australia to "extradition countries", under Pt II of the Act. The definition of "extradition country" in s 5 specifically excludes New Zealand. 26 In relation to extradition from Australia to New Zealand, s 28 provides that application may be made, in the statutory form, on behalf of New Zealand to a magistrate for the indorsement of a New Zealand warrant, ie for the "backing" of the warrant. Where there is urgency, s 29 allows for the issue of a provisional arrest warrant. Sections 30 and 31 provide for powers of search and seizure. In substance, these are in the same terms as those in Pt II of the Act, which deals with extradition to countries other than New Zealand. Section 32 deals with remand and bail. 27 Since this appeal concerns the meaning to be accorded to s 34(2) of the Act, it is useful to set out s 34 in its entirety [section omitted] … 28 It is apparent from Pt III of the Extradition Act that extradition from Australia to New Zealand is a much simpler process than extradition to other foreign states. New Zealand alone is not required to make a formal request for extradition. Nor is it required to produce "supporting documents" of the kind required from foreign states pursuant to s 19(2) and (3). And, unlike the position in relation to some other countries, including the United States, New Zealand is not required to provide prima facie evidence of guilt. 29 Extradition from Australia to New Zealand is also unique in other respects. As previously stated, none of the various extradition objections set out in s 7 of the Act applies. Thus, in the case of New Zealand, a person whose extradition is sought cannot resist surrender on any of the following grounds: • 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). 30 The only statutory bar to extradition to New Zealand is to be found in s 34(2). If a person wishes to raise any of the matters encompassed within s 7, they must be raised within the context of s 34(2) or not at all. 31 The onus rests upon the person whose extradition is sought to satisfy the magistrate of the matters set out in s 34(2). 32 As is the case with extradition to foreign states generally, considerations of guilt or innocence are not in issue, and the hearing before the magistrate is not a trial on the merits of the case. Section 34(4) provides that the magistrate cannot receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence. That prohibition presumably extends to evidence as to the state of mind of the person and not only to evidence as to the acts or omissions allegedly committed: Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 520-521. 33 As Pt III of the Act is intended to relieve New Zealand of the obligation to show or defend even a prima facie case in the Australian courts it is unclear precisely what practical role s 34(4) is intended to play. It may be that it merely makes explicit what is in any event implicit in the statutory scheme. Subject to one qualification, which is discussed below, an extradition proceeding involving New Zealand does not allow for any consideration of the strength of the case against the person whose surrender is sought. 34 Our conclusion that s 34(4) is not of itself a critical feature of Pt III of the Act finds support in the authorities. The Service and Execution of Process Act 1901 did not include a comparable provision. A comparable provision was not introduced into the Extradition (Commonwealth Countries) Act 1966 until 1985. Yet in no case of which we are aware has the presence or absence of a provision like s 34(4) been seen as significant. 35 We conclude this survey of the statutory scheme by noting that there is nothing in the language of s 34(2) that suggests that an Australian magistrate, concerned with the possible application of that section, ought ordinarily to engage in a wide-ranging consideration of the merits, or otherwise, of the New Zealand criminal justice system. The scheme of Pt II of the Extradition Act suggests that the issue of injustice is to be more narrowly focused than this. It also suggests that a finding of injustice would not be made lightly. The assumption that any trial in New Zealand will be fair 36 As has been seen, New Zealand has long been equated, for extradition purposes, with the Australian States and Territories. 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. 12 Section 34 of the Act is the critical statutory provision in the present case. That section 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 by or on behalf of the person or New Zealand for proceedings to be conducted under this section; the magistrate shall, unless the magistrate 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 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. (3) The magistrate 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 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. 13 Section 34 remains in the form in which it was considered by the Full Court in Moloney. 14 At [38]-[128] (pp 259-274) in Moloney, the Full Court considered the concepts of "injustice" and "oppression" in the context of extradition law. For present purposes, the following propositions may be gleaned from those paragraphs: (a) As a general rule, Australian courts are reluctant to ascribe bad faith to other countries when considering extradition applications (at [57] (p 262)). (b) The oppression limb of the composite expression "unjust or oppressive" in s 34(2) of the Act has been invoked far more frequently than the injustice limb as a basis for refusing surrender. That is not to say that the concepts are entirely distinct (at [58] (p 262)). (c) It would be oppressive to order surrender if it is absolutely clear that there is no real chance of a conviction or if it is absolutely clear that the allegations against the accused are wholly misconceived and could not possibly be right eg if the offence with which the accused is charged is not an offence in law or where the accused has been able to demonstrate a complete defence to the charge (at [59] (p 263)). This qualification is the only qualification to the general rule that the courts of the requested State are not concerned with the strength of the case against the accused (at [64] (p 263)). (We note that Kenneally v New Zealand (1999) 91 FCR 292 is an example of the rare case where the accused was able to establish that there was no possibility that he would be convicted). (d) As a matter of construction, each component in the composite expression "unjust, oppressive or too severe a punishment" must be given some separate meaning even if there is a degree of overlap between them (at [65] (p 263)). (e) In the composite expression "unjust, oppressive or too severe a punishment", injustice is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself and oppression is directed to the hardship visited upon the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration (at [66]-[73] (pp 263-265)). 15 At [72] (p 264) and at [74]-[81] (pp 265-266) in Moloney, the Full Court said: 72 Aughterson summarises the position regarding the "unjust or oppressive" ground under the 1901 Act in the following terms (at 163-164): Matters considered by the courts include the passage of time, the health of the person sought, hardship likely to arise through extradition, the likelihood of conviction, prison conditions in the requesting state, the prospect of a fair trial, the issue of natural justice and the gravity of the offence. Also, this issue overlaps with a number of other exceptions to extradition, including where there has been or will be a violation of procedural safeguards, an abuse of process, trial by a special tribunal, double jeopardy or exposure to severe or unusual punishment. (Emphasis added, footnotes omitted.) … The meaning of "unjust" 74 On one view, the Service and Execution of Process Act 1901 conferred a wide discretion upon magistrates and justices of the peace to refuse surrender. An alternative view is that the word "may" in s 18(6) was used in the sense discussed in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 (at 222-223) and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 per Windeyer J (at 134-135). That is, to confer an authority to act which must be exercised if the circumstances are such as to call for its exercise. 75 Section 34(2) of the Extradition Act, however, is plainly not discretionary; it is a statutory bar to surrender. Nonetheless, questions of judgment and degree are involved in any determination that it would be "unjust" to follow a particular course. It is impossible to lay down precise rules as to what is, and what is not, within the scope of the term "unjust". 76 Plainly, it would be unjust to require a person to be surrendered if, by reason of the time that has elapsed since the commission of the alleged offence, a fair trial cannot be had. Presumptive prejudice may be converted into actual prejudice if by reason of delay, important evidence has been lost or destroyed. Kakis provides a useful example of prejudice of this nature. 77 On the other hand, mere lapse of time, without more, may not be sufficient. For example in Perry v Lean the accused was charged with having committed murder more than 20 years earlier. Nonetheless, the South Australian Full Court (Olssen J dissenting) was not persuaded that it would be unjust to require her to be surrendered to Victoria. 78 As previously indicated, there are cases under the Service and Execution of Process Act 1901 in which the injustice limb of s 18(6) was invoked. A number of these cases concerned charges that were said to be misconceived or without foundation. Surrender was seldom refused, but the principle that it could be refused on this basis was generally accepted. See, eg O'Donnell v Heslop at 170; Re Alstergren and Nosworthy [1947] VLR 23 at 29-30; Aston v Irvine (1955) 92 CLR 353 at 366-367; Re Mandel [1958] VR 494; Ex parte Klumper at 170-171; Daemar v Parker [1975] 2 NSWLR 744 at 747; Skewes v Veenhuizen (1978) 20 SASR 109 at 113; Silbersher v Gerkens; Bates v McDonald at 94-95; Fultcher v Hilt (1985) 79 FLR 353 at 364-365; 61 ALR 359 at 371-372; Lewis v Wilson (1987) 90 FLR 251 at 253-254; (1987) 32 A Crim R 118 at 120. 79 In Kenneally v New Zealand (1999) 91 FCR 292 a Full Court considered many of these cases and held that the "unjust" limb of s 34(2) should be construed in essentially the same way. Kenneally was, however, a most unusual case. For reasons that were never entirely clear, New Zealand, though not obliged to produce any of the evidence upon which it based its charges, elected to present it all. Having opted for that course, it was fixed with the fact that its evidence, taken at its highest, fell short of even a prima facie case. In other words, the charges brought were misconceived and without foundation. It was hardly surprising, therefore, that the Full Court held that it would be "unjust" for the appellant to be surrendered to New Zealand. 80 There are several cases which go further than those referred to at [78]. They hold that it can be "unjust" to require a person to be surrendered if there are serious doubts as to whether a fair trial will be possible. 81 In Narain v Director of Public Prosecutions (at 425) a Full Court observed, albeit by way of dictum, that a failure to provide adequate particulars of the alleged offence could lead to a finding that it would be "unjust" or "oppressive" to surrender a person to New Zealand. 16 In Moloney at [82]-[109] (pp 266-270), the Full Court discussed a number of other authorities. That discussion included a discussion of New Zealand v Venkataya (1995) 57 FCR 151, a decision of Sackville J. The Full Court did not disapprove the reasoning of Sackville J in Venkataya nor did it disagree with his decision. At [108] (p 270) of its judgment in Moloney, the Full Court cited his Honour's remarks at 164-165 in Venkataya to the effect that, in some cases, the lapse of a lengthy period of time since the commission of the alleged offences may be determinative against surrender. The Full Court then said, at [109] (p 270): His Honour concluded that, although the case was a difficult one, the very great delay in bringing the charges against the first respondent, and the irremediable prejudice that had been demonstrated by reason of the destruction of important evidence meant that the magistrate's decision should be confirmed. 17 In Moloney, at [15] (p 255), the Full Court said: 15 Plainly, the meaning to be accorded to the term "unjust" in s 34(2) will be influenced by a number of considerations. These include: • the detailed nature of the arrangements, including the backing of warrants procedure, and the prohibition upon adducing evidence to contradict an allegation that the person has engaged in conduct constituting an offence, pursuant to s 34(4); • the statutory scheme in the Extradition Act which makes specific provision for extradition between Australia and New Zealand; • the underlying assumption in the Extradition Act that any trial in New Zealand will be fair; and • the history of the special arrangements and, in particular, the retention in relation to extradition to New Zealand of the condition that a person not be surrendered if it would be "unjust, oppressive or too severe a punishment" to do so. 18 The first of the three principal objects of the Act (viz that which is specified in s 3(a) of the Act) makes very clear that Australian courts which are called upon to determine extradition proceedings are not to determine the guilt or innocence of the accused, whether extradition is sought to New Zealand or to an extradition country (as defined in the Act). In the case of extradition to New Zealand, this fundamental directive is reinforced by the terms of s 34(2) and s 34(4) of the Act. When considering an application for extradition to New Zealand, an Australian court must not conduct an inquiry similar to a committal hearing and must not embark upon any consideration or assessment of the guilt or innocence of the accused except in the rare case where the impossibility of conviction is plain beyond argument (eg Kenneally) (see Bates v McDonald (1985) 2 NSWLR 89 at 101F per Samuels JA). 19 The effect of s 34 of the Act is that, unless the magistrate makes an order under s 34(2) of the Act, he or she must order that the accused be surrendered to New Zealand. The magistrate can only make a release order under s 34(2) of the Act if the magistrate is satisfied that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand for one or more of the following reasons: (a) The offence specified in the warrant 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; (c) A lengthy period has elapsed since the offence was allegedly committed; or (d) For any other reason. 20 The accused bears the onus of satisfying the magistrate of these matters. 21 A review by a single judge of this Court pursuant to s 35(1) of the Act is a rehearing and the judge is permitted to have regard to evidence in addition to or in substitution for the evidence that was before the magistrate (s 35(6)(d) of the Act).

The Nature of the Appeal 22 Section 35(3) and s 35(6)(e) of the Act provide that, in an appeal to a Full Court of this Court from a decision of a single judge of this Court on an application made pursuant to s 35(1) of the Act for a review of a magistrate's order made under s 34 of the Act, the Full Court shall have regard only to the material that was before the primary judge. The effect of s 35(6)(e) is to designate such an appeal as an appeal in the strict sense. In such an appeal, the appellate body cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if appropriate, to giving in lieu of that decision the decision which should have been made at first instance (Allesch v Maunz (2000) 203 CLR 172 at [22]-[24] (pp 180-181) (per Gaudron, McHugh, Gummow and Hayne JJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [12] (p 203) per Gleeson CJ, Gaudron and Hayne JJ). 23 New Zealand submitted that the current appeal is by way of rehearing. For the reasons explained at [22] above, we do not agree. The nature of an appeal by way of rehearing was explained by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd at [13]-[17] (pp 203-204). 24 An appellate court, when hearing an appeal in the strict sense, is called upon to redress error on the part of the court below (Mickelberg v The Queen (1989) 167 CLR 259 at 267 (per Mason CJ); Eastman v The Queen (2000) 203 CLR 1 at [5]-[19] (pp 10-13) (per Gleeson CJ); at [68]-[70] (pp 24-25) (per Gaudron J); at [107]-[112] (pp 34-35) and [160] (pp 52-53) (per McHugh J); at [178]-[180] (pp 58-59) (per Gummow J). In deciding whether there is error, the appellate court looks to the materials which were before the Court below and to nothing else (Mickelberg at 267). 25 We are mindful of the terms of ss 24-28 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). Section 28(1) and s 28(3) of the Federal Court Act bestow wide powers upon the Full Court. Although s 27 of the Federal Court Act expressly permits the receipt of additional evidence on appeal and thus suggests that, generally speaking, an appeal to the Full Court will be by way of rehearing, we are of the opinion that the terms of s 35(6)(e) of the Act make clear that an appeal under s 35(3) of that Act (of which the present case is an example) is an appeal in the strict sense and is not by way of rehearing. The specific provisions of the statute which engages the Court's jurisdiction (in this case, the Act) should be accorded primacy over the more general provisions of the Federal Court Act. 26 At the hearing of the appeal, an attempt was made by the first respondent to tender further evidence. We did not admit that evidence because the Act does not allow this Court to do so (see s 35(6)(e)). Nothing else in the appeal turns on the distinction between an appeal in the strict sense and an appeal by way of rehearing. In both cases, error must be shown: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [25] (p 436) per Allsop J.

The Charges 27 The charges were laid on 22 June 2009. Although there are eight charges, they fall into three groups. 28 The first group of charges relates to incidents which occurred on 3 and 4 August 1973 at the Avondale (NZ) home then occupied by the first respondent, his de facto wife Grace (who is the biological mother of A) and three other children. It is alleged that, on 3 August 1973, the first respondent raped A, forced her to have oral sex with him and indecently assaulted her in other ways. The charges arising out of these allegations are two counts of indecency with a girl under the age of 12 and one count of rape. 29 It is also alleged that, on 4 August 1973, the first respondent assaulted A by hitting her with an electric frying pan cord, smashing a plate on her head, throwing a chair at her and punching her in the mouth. These alleged assaults occurred whilst Grace was not present in the home. They occurred the day after the alleged rape and indecent assaults. It is alleged that the first respondent assaulted A as a reprisal or punishment for A's having told Grace of the rape and indecent assaults allegedly committed by the first respondent the day before. These matters underpin a charge of assault with intent to injure. 30 The second group of charges relate to events which are said to have occurred between 31 January 1976 and 1 March 1976 at the Avondale (NZ) home of the first respondent. It is alleged that, while Grace was in hospital having a hysterectomy, the first respondent raped A every day during the period that her mother was away (a period of approximately one month). It is also alleged that, during this period, the first respondent indecently assaulted A. 31 The third group of allegations relate to the period between 23 May 1976 and 11 June 1977. It is alleged that on one particular occasion in this period at the Avondale (NZ) home of the first respondent, the first respondent raped A. It is also alleged that, on another occasion in this period, the first respondent raped A from behind while forcing her to bend over the stove in the kitchen of the home at Avondale (NZ). 32 These allegations are very serious. If true, they constitute offences against which the law has set its face for centuries. The sexual assault of a child is regarded by all civilised communities as a crime which warrants severe punishment. It is certainly viewed in this way in both Australia and New Zealand. The very serious nature of the allegations which underpin the charges in the present case weighs very heavily in favour of extradition.

The Primary Judge's Reasons 33 At [1]-[12] of his Reasons, the primary judge gave a brief outline of the relevant facts and referred to the critical legislative provision, s 34 of the Act. At [13]-[22], his Honour helpfully summarised the magistrate's decision. His Honour noted that the magistrate had concluded that it would be oppressive to surrender the first respondent to New Zealand. At [14] of his Reasons, the primary judge said: 14 When the Magistrate commenced to explain his conclusion, his Honour said he was very conscious of the serious and heinous nature of the allegations and the type of allegations that were made. Nonetheless, his Honour decided when taking all factors into account to release the first respondent under s 34(2) of the Act. His Honour observed in his concluding remarks that: … in particular when regard is had to the delay in complaint, the delay in the investigation of the complainant's statement and the delay in the laying of the charges and the seeking of the extradition of Mr Johnston, his age and medical condition, the impact surrender will have on his ability to be employed, retain his longstanding accommodation, the impact upon his new wife which impacts upon him, that it would be oppressive to surrender him to New Zealand. 34 At [18] and [19], his Honour said: 18 The delay and the possible prejudice caused to the first respondent were discussed in considerable detail by the Magistrate. The chronology was as follows: August 1973 - June 1977 Offences alleged to have occurred 30 March 2006 - 2 April 2006 Complainant makes her statement to the New Zealand police May 2006 New Zealand police informed of sexual offence charges in NSW involving the first respondent 12 June 2006 New Zealand police decision that no further investigation to be undertaken until the outcome of the NSW charges is known November 2007 First respondent acquitted of NSW charges 10 December 2007 NSW police advise New Zealand police of acquittal Early 2008 New Zealand police complete investigation and submit file to Adult Sexual Assault Team in Otahuhu 8 August 2008 - 27 November 2008 Further investigation and decision that criminal charges should be laid 13 February 2009 Authorisation of the New Zealand Commissioner of Police given to commence extradition process 22 June 2009 Charges laid in New Zealand District Court and arrest warrant issued July 2009 Formal request for extradition made by New Zealand to Australia 14 September 2009 New Zealand warrant indorsed by Australian magistrate 16 September 2009 First respondent arrested

19 The Magistrate was concerned that the first respondent appeared to have had no knowledge of the New Zealand investigation or charges prior to his arrest in September 2009 and he expressed regret at the complete halt to investigations by the New Zealand police for a considerable period (12 June 2006 to 10 December 2007) because of the first respondent's trial on unrelated charges in New South Wales. The further six months delay from early 2008 to 8 August 2008 was also viewed by his Honour as of importance. By the time the charges were laid on 22 June 2009, three years and three months had passed since the statement of the complainant had been received by the New Zealand police. The Magistrate concluded that the "accused is clearly not responsible for the unfortunate delay". 35 At [23] and [24], his Honour correctly summarised the law with respect to the status of the magistrate's decision and the powers of the Court when conducting a review of that decision under s 35(1) of the Act. 36 His Honour then discussed some of the relevant authorities (at [28]-[34] of his Reasons). In particular, his Honour referred to Venkataya; Heslehurst v Government of New Zealand [2000] FCA 1311; Moloney; and Bannister v New Zealand (1999) 86 FCR 417. 37 In this part of his Reasons, his Honour referred to several authorities which dealt with the impact of delay in extradition matters (Venkataya; Moloney; Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634, [1978] 1 WLR 779; and Bannister). 38 His Honour commenced his consideration of the matter in detail at [35] of his Reasons. 39 At [37]-[39], his Honour dealt with the first respondent's attack on the bona fides of the informant responsible for the laying of the charges, Detective Constable Stickland of the New Zealand Police. At [38], his Honour noted that Detective Stickland had been cross-examined before the magistrate but not before him. His Honour also noted at [38] that the principal basis of the attack upon the bona fides of Detective Stickland was his allegedly disingenuous evidence concerning a file which the parties and his Honour came to refer to as "the social welfare file". 40 Detective Stickland had obtained a file maintained by the Department of Social Welfare (NZ) (the Social Welfare Department) in respect of A some time before the commencement of the hearing before the magistrate. The file had not been produced by New Zealand as part of the evidence before the magistrate and was therefore unavailable to the first respondent at that hearing. New Zealand should not be criticised for not bringing forward the social welfare file at the hearing before the magistrate. It was under no compulsion to do so. It had also made clear at all times both to the magistrate and to the primary judge that it did not propose to tender the full Police Brief at either hearing. 41 At a time which can be placed between late 2009, when the hearing before the magistrate took place, and the commencement of the review hearing before the primary judge on 2 August 2010, New Zealand produced the file to the first respondent's lawyer and extracts from that file were tendered in evidence at the review hearing before the primary judge. We shall refer to the bundle of extracts from the social welfare file tendered in evidence before the primary judge as "the social welfare exhibit". 42 Notwithstanding that it would have been open to the first respondent's advocate to cross-examine Detective Stickland at the review hearing before the primary judge, he chose not to do so. He no doubt had good reasons for not cross-examining Detective Stickland at the review hearing. The primary judge was of the view that the criticisms of Detective Stickland made by the first respondent's advocate did not justify a finding that he had not acted in good faith and in the interests of justice within the meaning of that expression in s 34(2)(b) of the Act. The magistrate had reached the same conclusion. 43 At [39]-[41] of his Reasons, the primary judge 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. 44 At [43], his Honour commenced to address the question of delay. At [44]-[51], his Honour dealt with what his Honour described as "actual prejudices" brought about by delay. The prejudice said to have been suffered by the first respondent was said to result from the death or unavailability of several witnesses, including Grace, A's biological mother who died in Australia in July 2004. The primary judge held that the first respondent had failed to make good his contentions that the death or unavailability of the identified persons constituted actual prejudice. His Honour took the view that it was a matter of speculation as to whether any of the dead or unavailable witnesses would have assisted the first respondent's defence. 45 At [50], his Honour said: 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… 46 At [52], the primary judge dealt with what he called "potential prejudices". In addition to dead or unavailable witnesses, his Honour referred to the fact that other evidence may also have been lost (eg doctors' records, school records, hospital records and taxi records). 47 His Honour concluded that, as with the so called "actual prejudices", the Court could only speculate about the impact of these "potential prejudices" and was not in a position to form any firm views as to that impact (if any). 48 At [49] and [54]-[58], his Honour set out his reasons for the finding which he ultimately made that it would be unjust to surrender the first respondent to New Zealand. In those paragraphs, his Honour said: 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. … 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. 49 At [59]-[68], his Honour addressed the question of oppression. His Honour referred to all of the matters raised by the first respondent but, in the end, at [67] of his Reasons, held: 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 [sic] (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 [sic] would be oppressive to surrender the first respondent to New Zealand.

New Zealand's Evidence in Support of Extradition 50 In support of extradition, New Zealand read two affidavits sworn by Detective Stickland. In addition, it relied upon an affidavit of a formal nature sworn by an Australian Federal agent. There was also some evidence from an officer of the Department of Immigration and Citizenship (DIAC) concerning the immigration status of the first respondent's current wife (J) and some evidence concerning the payment of Australian pensions in New Zealand. 51 In his first affidavit, Detective Stickland addressed the requirements of the offences with which the first respondent stands charged, set out a summary of the relevant facts constituting the offences, gave some evidence as to the identification of the first respondent and then addressed the question of delay as follows: Delay in Reporting to Police 16. Extradition is sought for offences committed between 3rd August 1973 and 11th June 1977; however, [A] did not report the offences to police until March 2006. 17. Since March 2006 numerous enquiries have been made during the investigation in order to obtain sufficient evidence to support this extradition. This has included obtaining statement [sic] from family members living in Australia. 52 In his second affidavit, Detective Stickland gave a much more detailed account of the police investigation which occurred after A first made her complaint. A first made her complaint on 20 March 2006 and provided a statement to the New Zealand Police over three days between 30 March 2006 and 2 April 2006. 53 In May 2006, the New Zealand Police officer who was then in charge of the investigation was informed by a New South Wales Police detective that the first respondent had been charged in Australia with offences against the daughter of D, a half-sister of A, whose biological mother was Grace but whose father was not the same man as A's biological father. In June 2006, the New Zealand Police decided that they would await the result of the first respondent's trial in Australia on the charges involving D's daughter before taking any further steps to extradite the first respondent to New Zealand. On 10 December 2007, the first respondent was acquitted of the charges involving D's daughter. In early 2008, A's March/April 2006 complaint made to the New Zealand Police was referred to a specialist unit within the New Zealand Police (called the Adult Sexual Assault Team) based in Otahuhu (NZ). That specialist unit was the unit responsible for investigating sexual assault matters for the whole of the Manuku area. 54 Detective Stickland received the police file on 8 August 2008. On 14 August 2008, Detective Stickland requested the New South Wales Police to obtain further statements from A's biological brother whom we shall call B (who is two years older than A) and from A's half sister, D (who is eight years younger than A). By late November 2008, the statements which Detective Stickland had requested had been provided. 55 Detective Stickland swore that, by that time, he was satisfied that there was a case to answer and that criminal charges should be laid against the first respondent. He then set about requesting authorisation for the first respondent to be extradited from Australia to New Zealand. In New Zealand, the authority of the Commissioner of Police is required before an extradition can be commenced. That authority was obtained on 13 February 2009. After some further input from legal advisors, a formal extradition request was sent by New Zealand to Australia on 10 July 2009. 56 There was tendered before the magistrate a statement made by A to Detective Constable Irving of the New Zealand Police over three days (30 March 2006, 31 March 2006 and 2 April 2006). It is not necessary to traverse this statement in detail. It is sufficient for present purposes for us to note that A's statement supports the allegations which underpin the charges which have been laid against the first respondent. In her statement, A said (referring generally to the sexual assaults which she claims were perpetrated on her by the first respondent): I used to tell my social workers as well but they never believed me. That general remark was not specifically directed to the incidents which are the subject of the charges. 57 The statement of B was not tendered either before the magistrate or the primary judge. However, in his first affidavit, Detective Stickland said that the New Zealand Police had a statement from B and that B would give evidence substantially as follows: This witness can recall the complainant [referring to A] telling him not long after they had moved in with the offender [the first respondent] and their mother [Grace] "[the offender] put his thing in me". He will also give evidence that when he was about 12 years old he witnessed the offender smashing a plate over the complainant's head. In 1990 this witness went to stay with his mother and the offender in Australia before he was joined by his family. While staying with the offender he asked him if he had molested his sisters to which the offender replied yes. 58 B was 12 years old in 1973. 59 Detective Stickland also said that he held a statement from D in which D said that: … on one occasion while they were all living in Avondale walking into the kitchen, only to see the complainant [A] bent over the stove with her hands on the hotplates (not turned on) her dress/skirt around her waist with the offender stood behind her with his pants down to his knees and his hand over [A's] mouth. 60 The witness statement of D was also not in evidence either before the magistrate or the primary judge. 61 The first respondent tendered in evidence before the magistrate three handwritten statements from C, who is another half-sister of A. C is six years younger than A. Before the primary judge, he also tendered a typed statement from C. These statements contain criticisms of A, B and D and are generally supportive of the first respondent's denials of any wrongdoing. The basis upon which these statements came to be admitted at the extradition hearing before the magistrate is unclear. They could not, of course, be used to contradict the allegations which underpin the charges. 62 We shall deal with the other evidence tendered by New Zealand at the hearings below as necessary when dealing with the first respondent's contentions in support of the proposition that it would be unjust and oppressive for him to be surrendered to New Zealand.

The Extracts from the Social Welfare File 63 The social welfare exhibit was tendered before the primary judge but not before the magistrate. The social welfare file from which the documents in the exhibit were extracted had not been available to the first respondent at the time of the hearing before the magistrate. 64 The social welfare exhibit was tendered before the primary judge on 2 August 2010. At that time, Counsel for New Zealand said that he assumed that the extracts from the social welfare file were being tendered not to contradict any allegation but rather for some other purpose. His opponent made no comment. The primary judge did not specifically rule on the point. However, it is clear that the social welfare exhibit cannot be used to contradict the allegations which underpin the charges laid against the first respondent. 65 At the hearing of the appeal, the Court was taken to a selection of entries made in various documents contained in this exhibit. The documents contained in the exhibit were created between 8 July 1975 and 27 November 1990. There are only two documents in the exhibit which were created after August 1978. In July 1975, A had just turned 12. In August 1978, she was a little over 15 years of age. The documents which comprise the social welfare exhibit may broadly be described as: (a) File notes and reports made by social workers from time to time; (b) Social welfare reports made by those officers for the Children and Young Persons' Court in Auckland (NZ (the Children's Court); (c) NZ Department of Education Psychological Service Reports in respect of A (dated 3 December 1975 and 22 July 1977); and (d) Other file notes relating to interviews and visits conducted by social workers. 66 In the social welfare exhibit, there are several entries in which social workers make comments to the effect that A has told lies to teachers and other adults concerned for her welfare; that she is prone to exaggerate; that she is manipulative; and that she is deceitful. For the most part, the basis for these expressions of opinion is not revealed in the documents. On occasion, it is clear that the remarks are a note of other persons' opinions, sometimes conveyed second, third or even fourth hand. On occasion, the remarks can be sourced to Grace and the first respondent. 67 In two file notes (one made on 8 July 1975 and one made on 24 October 1975), a social worker, Mr CH Skuse, recorded what he had been told concerning an incident where A had complained of having been beaten by the first respondent on 10 December 1974. There is no note dated December 1974 in the exhibit. There is no document in the exhibit which was created in or around December 1974. As already mentioned, the oldest document in the social welfare exhibit is dated 8 July 1975. According to Mr Skuse's file notes, A complained to teachers at her primary school immediately after the incident occurred (ie on 10 December 1974). Mr Skuse investigated the complaint to some extent. The documents in the exhibit confirm that A had, in fact, been beaten. Mr Skuse took her to the Central Police Station in Auckland and a police photographer took pictures of the injuries suffered by A. Mr Skuse then recorded that, upon further investigation, he discovered that A had retracted her allegation that the beating had been carried out by the first respondent and had conceded that, in fact, it was her mother (Grace) who had beaten her. Mr Skuse appears to have accepted that it was Grace who had beaten A and, for that reason, took no further action. Nothing in the social welfare exhibit indicates that anyone investigated the circumstances in which A had recanted and changed her story as to the identity of the person who had beaten her on 10 December 1974. 68 At the time of the December 1974 beating, A was 11 years old. 69 The social welfare exhibit also contains several notes to the effect that A had complained of having been sexually assaulted by the first respondent on many occasions in the period up to 1977. These notes are expressed in very general terms. It is not possible to identify any particular incident from the terms of these notes. 70 Documents in the exhibit also disclose that A was placed into institutional care on several occasions, the first such occasion apparently being on 16 October 1975, when she was a little over 12 years of age. 71 The social welfare exhibit does not contain any reference to the events of 3 and 4 August 1973 which are described in some detail in A's statement given to the New Zealand Police in late March and early April 2006. The earliest incident referred to in the social welfare exhibit is the 10 December 1974 beating. 72 The last three paragraphs of the file note dated 24 October 1975 prepared by Mr Skuse are in the following terms: 32. I should have written this girl up as a preventive supervision case but seem to have kept putting it off. 33. When I learned that [A] was in the Girls' Home and nobody seemed to know why, I telephoned Henderson Police and was informed by the officer that [A] had been making accusations of indecent assault against her by Mr Johnston. 34. On 22.10.75 I learnt that a staff conference will be held with officers of the Police Department to discuss this girl's case. This report was prepared late on Thursday afternoon having had my day interrupted by a hearing in the Children's Court in relation to a breakdown of adoption. 73 That file note appears to have been prepared in circumstances where A had been detained by the police, having run away from home several times between July and October 1975, and placed into the care of the Mt Albert Girls' Home on 16 October 1975. There were hearings before the Children's Court on 17 October 1975 and again on 31 October 1975. The social welfare exhibit reveals that, when detained on 16 October 1975, A had alleged that she had been indecently assaulted by the first respondent and that, as at late October 1975, this "complaint" was being investigated. The documents in the social welfare exhibit do not provide any detail of this allegation. There is no note of what the first respondent is alleged to have done nor is there any note of when or where the alleged incident or incidents took place. In a separate document (a report dated 31 October 1975 prepared by the Social Welfare Department for the Children's Court), the author said: According to Police information she had told [Mrs M] that she had been indecently assaulted by Mr Brian Johnson [sic] her mother's de facto husband. The Police had taken a statement from the girl and had investigated the complaint but I understand there are no grounds for prosecuting Mr Johnson." 74 In a later report prepared for the Court dated 6 July 1977, another social worker (Ms GD Robb) referred to the placement of A in the Allendale Road Girls' Home in October 1975: … following her allegations that her stepfather had interfered with her. Ms Robb then recorded in that Report that: These allegations were false and [A] was returned home. 75 Apparently, A was returned to the first respondent's home on 4 December 1975. 76 On 6 July 1977, A was detained and taken on warrant to another girls' home - on this occasion, the Bollard Avenue Girls' Home. She was, at that time, just 14 years of age. 77 In her 6 July 1977 report, Ms Robb noted that A had a particularly bad relationship with the first respondent and would not have anything to do with him. In that report, Ms Robb noted that Grace was fearful that she would hit A so hard that she would hurt her. Grace wanted A removed from her home and sent to the girls' home. A was admitted to the Bollard Avenue Girls' Home on 6 July 1977 and remained there until late September 1977. 78 In a further report dated 26 July 1977 prepared by Ms Robb for the Children's Court, Ms Robb said: 5. [A] first came to the notice of this Department in June 1974 when there were accusations from a neighbour that [A] had been harshly treated by her stepfather. When investigated it was found that [A] had been spreading stories around the neighbourhood about being raped by various men and being subject to harsh treatment at home. In December 1974 [A] was hit by her mother with a kettle cord … 79 There is no other document in the social welfare exhibit which refers to these alleged rapes by other men or to the fact that the Social Welfare Department had become involved with A as early as June 1974. The source of the information recorded at par 5 of Ms Robb's report is not revealed. The note is made by someone who was not involved with A in June 1974. It is a note of someone else's recollections unsupported by any other entry in the exhibit. 80 A's antagonism towards the first respondent apparently continued into 1978. That antagonism is noted in reports dated 26 October 1977, 13 June 1978 and 21 August 1978. In the last of these reports, A told the author that the first respondent had made advances to her and that she was scared of being alone with him. 81 A appears to have spent most of the second half of 1977 and the first half of 1978 in the Allendale Road Girls' Home. 82 In a Family Home Placement Report dated 27 September 1977, Ms Robb said that Grace had told her that: [A's] … behaviour was jeopardising her [Grace's] relationship with her de facto husband … 83 At this time, Grace was advocating that A be placed into a girls' home because the family could no longer deal with her. In September 1977, A was a little over 14 years of age. 84 Whilst there is a suggestion in one document (a Social Welfare Department Report dated 25 July 1977) that the July 1977 reference to the Children's Court had been brought about because of … [A's] emotionally disturbed behaviour at home involving allegations by her of sexual interferences [sic] from her stepfather (which appear unfounded) and many other instances where she has been found to be lying and manipulating situations … there is no note or record in the social welfare exhibit of any investigation by anyone into A's allegations of sexual assault nor is there any note or record of anyone having interviewed A about them. 85 The following observations may be made about the contents of the social welfare exhibit: (a) The Social Welfare Department did not become involved with A until June 1974, and probably not until December 1974. (b) A was undoubtedly severely beaten on 10 December 1974. Once A retracted her original account that it was the first respondent who had beaten her and corroborated her mother's version that it was her mother who had beaten her, all action in relation to that beating ceased. There was no investigation into the circumstances of the beating nor was there any investigation into the circumstances in which A had changed her account of what had happened. (c) There is no mention in the exhibit of the incidents which allegedly occurred on 3 and 4 August 1973 which underpin the first group of charges against the first respondent. Given that the Social Welfare Department was not involved with A until 1974, this is not surprising. (d) The documents in the exhibit record general observations about A when she was aged between 11 and 15 to the effect that she told lies and exaggerated when talking to others even about serious matters and events. These observations are generally recorded by an officer of the Social Welfare Department and comprise, for the most part, a note of other people's views, expressed in very general terms and often not attributed to any particular person. The basis upon which such views were held is almost always not explained. These observations are too general and unsupported by any detailed reasoning to be regarded as reliable. (e) A was placed into the Mt Albert Girls' Home on 16 October 1975 and into the Allendale Road Girls' Home in the same month. These homes may be one and the same - the exhibit does not make this clear. On 6 July 1977, A was placed into the Bollard Avenue Girls' Home. She may have again been placed into the Allendale Road Girls' Home in the second half of 1977 where she stayed until mid-1978. In 1978, she may also have been in yet another girls' home - the Rosemount Girls' Home. (f) There are many entries referring to allegations made by A that the first respondent had sexually assaulted her. Whilst no details of these incidents are provided, there is a consistent theme in the documents dated in the second half of 1975 and in the documents created between July 1977 and August 1978 that A had made allegations that the first respondent had interfered with her and had sexually assaulted her. There is a suggestion in one or two documents that at least some of these allegations were investigated and found to be untrue, but, once again, no details are provided. The source of this information is not identified and the basis upon which the assertion was made to the effect that the allegations were found to be untrue is simply not revealed. These entries in the exhibit are equally consistent with A having made truthful complaints to teachers, carers, social workers, police and neighbours which were either not investigated at all or not properly investigated as they are with the proposition that the complaints were unfounded and false. (g) Given that the documents which comprise the social welfare exhibit were selected for tender by the first respondent's legal representative, we are entitled to assume that there are no other documents contained in the social welfare file amongst those documents in that file which have not been tendered which would be of any assistance to the first respondent in his defence against the charges or which would put a more favourable complexion on the contents of the social welfare file than the complexion conveyed by those documents contained in the social welfare exhibit.

The Bona Fides of Detective Stickland 86 The advocate for the first respondent mounted a vigorous attack upon the bona fides of Detective Stickland. That attack was pressed in support of a contention made on behalf of the first respondent that the accusations had not been made in good faith or in the interests of justice. If either the magistrate or the primary judge had been satisfied that it would be unjust, oppressive or too severe a punishment to surrender the first respondent to New Zealand for that reason, the release order originally made by the magistrate and confirmed by the primary judge would stand (s 34(2)(b) of the Act). 87 The magistrate rejected this argument for the following reasons: In assessing the submission made on behalf of the accused I need to keep in mind that I do not have all of the prosecuting brief before me. I do have the complainant's statement and certain summaries of the evidence which is said to be available to the prosecution. I have also had the advantage of seeing Detective Stickland cross-examined before me about the brief and the manner in which he went about his part of the investigation which commenced in August 2008. There is nothing in my view in that evidence which establishes that Detective Stickland did not bring the charges, that is, make the accusations, in anything other than good faith or in the interests of justice. This is not a case where it could be said that the information and evidence provided to him was obviously unreliable in my view. The submissions that the accusations were not made in good faith or in the interests of justice are rejected. 88 The primary judge also rejected this contention for the reasons which we have referred to and extracted, in part, at [39]-[43] above. 89 The law is that the "accusation" referred to in s 34(2)(b) of the Act refers to the substance of the charges laid by the police against a person whose extradition will be required for the prosecution of those charges and not to the allegations made by the complainant or victim which led to the charges being laid. 90 It is not necessary to recite in detail the criticisms made of Detective Stickland's evidence in the submissions made on behalf of the first respondent. Those criticisms essentially come to one point: That Detective Stickland was dishonest or, at the very least, deceptive in the evidence which he gave before the magistrate in order to cover up the inadequacies of the police investigation in New Zealand and in order to convince the magistrate to support the extradition of the first respondent in circumstances where Detective Stickland was not genuinely of the view that extradition should take place. It was submitted on behalf of the first respondent that the case against the first respondent was so weak that the Court should infer that no honest and reasonable police officer could have been satisfied that the first respondent had a case to answer and therefore that, contrary to Detective Stickland's sworn evidence, he did not, in fact, form the view that the first respondent had a case to answer and that he was justified in laying the charges. It was also put, in the alternative, that Detective Stickland had been reckless in laying the charges. 91 These are very serious allegations. It would require very strong evidence indeed for a court to uphold them (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 (per Mason CJ, Brennan, Deane and Gaudron JJ). The evidence relied upon by the first respondent in support of his attack on Detective Stickland falls well short of what would be required to justify the finding which he seeks. 92 Neither the magistrate nor the primary judge was satisfied that Detective Stickland had not acted in good faith and in the interests of justice when he laid the charges against the first respondent. The first respondent seeks to reverse these findings on appeal. They are findings of fact. In the case of the magistrate, the finding which he made depends, to some extent, upon observations which he made of Detective Stickland in the witness box (Fox v Percy (2003) 214 CLR 118 at [25]-[31] (pp 127-129) (per Gleeson CJ, Gummow and Kirby JJ) and at [77]-[93] (pp 143-147) (per McHugh J)). 93 The first respondent's difficulties in attempting to overturn these decisions made by the magistrate and by the primary judge are compounded by the fact that the first respondent's advocate chose not to cross-examine Detective Stickland at the review hearing before the primary judge. Instead, he chose to put submissions to this Court based upon a matter that was never raised directly with Detective Stickland (the proposition that he had improperly withheld the social welfare file and dissembled its contents before the magistrate) in circumstances where he chose not to cross-examine him at all. This was a bold stratagem but was nonetheless one which was always bound to fail. Detective Stickland should have been given the opportunity to address the allegations being made against him and the primary judge should have been placed in the position where he could fairly assess Detective Stickland's evidence and bona fides in light of the first respondent's manifest challenge to both. Neither of these things was done (see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) (1983) 1 NSWLR 1 esp at 16C-E, 22F-23E and at 26B-F (per Hunt J)). 94 In the circumstances which we have outlined, it is not open to the first respondent to make the challenge which he now makes to the actual findings as to the bona fides of Detective Stickland made by both the magistrate and the primary judge 95 We reject the first respondent's contentions concerning the bona fides of Detective Stickland.

The Grounds of Appeal 96 New Zealand relied upon the following grounds of appeal: 1. The learned primary judge erred in finding that the first respondent would be actually prejudiced in his defence of the charges on which extradition was sought because of delay and, that in the result, it would be unjust for him to be surrendered. 2. The learned primary judge erred in finding that the said injustice arose from certain unspecified extracts from the New Zealand social welfare file of the alleged victim which recorded opinions that the victim had lied or exaggerated 30 years ago, which opinions could once have been used by the first respondent to attack or undermine the victim's credit at trial but could no longer be so utilised. 3. The learned primary judge erred in failing to provide proper reasons. 4. The learned primary judge erred in failing to identify the precise extracts from the social welfare file which were so relied upon. 5. The learned primary judge erred in failing to identify when and for what reason each extract from the social welfare file became unable to be so relied upon. 6. The learned primary judge erred in relying, in breach of s 34(3) of the Extradition Act 1988, upon material from the social welfare file as evidence to contradict an allegation that the first respondent has engaged in conduct constituting an offence in relation to which the indorsed New Zealand warrant was issued. 7. The learned primary judge erred in assuming there had been a full police investigation in New Zealand in the 1970s into the matters the subject of the current charges. 8. The learned primary judge erred in making assumptions as to what could be done to cross-examine the victim at the first respondent's putative New Zealand trial in the absence of evidence as to the applicable New Zealand law, or agreement as to whether that law was the same as the law applicable in a comparable case in a particular Australian State or Territory. 9. The learned primary judge erred in impermissibly speculating as to the course of the trial. 10. The learned primary judge erred otherwise in dismissing the application for review. 97 These grounds come to this: First, the primary judge erred by reasoning from the contents of the social welfare exhibit that the first respondent's trial on the charges would be unfair because of irremediable prejudice caused by delay, namely, that certain potential avenues or lines of cross-examination have been irretrievably lost. Second, the primary judge failed to give proper or adequate reasons for his decision that it would be unjust to surrender the first respondent to New Zealand. The alleged inadequacy is the primary judge's failure to identify the entries from the social welfare exhibit upon which he relied and his failure to explain how he used those entries in coming to his decision. 98 We shall address the grounds of appeal by reference to these two essential matters.

New Zealand's Argument 99 New Zealand submitted that: (1) The primary judge erred by failing to give adequate reasons for his conclusion that it would be unjust to surrender the first respondent to New Zealand. At [54] of his Reasons, his Honour held that the first respondent was now unable to investigate the basis upon which various persons had expressed the opinion that A was an habitual liar and exaggerated the truth as recorded in the social welfare exhibit and was therefore denied access to information that could have provided a fruitful basis for attacking A's credit in cross-examination. Because these conclusions were based upon the contents of the social welfare exhibit, it was incumbent upon his Honour to identify those portions of that exhibit upon which he relied to reach the conclusion which he did and to explain how the identified portions led to that conclusion. His Honour failed to do either of these things; (2) Adequate reasons would reveal whether the social welfare exhibit had, in fact, been impermissibly used by the primary judge to contradict the allegations; and (3) The primary judge also erred by engaging in impermissible speculation. His Honour drew on the social welfare exhibit to arrive at the conclusions which he expressed at [54] of his Reasons. His Honour postulated various avenues of investigation now lost to the first respondent in circumstances where his Honour's hypotheses were not justified by the contents of the social welfare exhibit or by any other evidence before him. His Honour then made assumptions as to the likely course of the trial of the first respondent in New Zealand and reached his ultimate conclusion (at [58] of his Reasons) that the first respondent would be prejudiced in his defence because of the delay and that, for that reason, it would be unjust for him to be surrendered.

The First Respondent's Response 100 The first respondent's advocate focused on the extent of the delay. He (quite rightly) submitted that the delay could not be attributed to the conduct of the first respondent. He pointed to the following matters of prejudice: (a) Because Grace is dead, her evidence is lost. The evidence of Grace would have supported the first respondent's defence and contradicted the evidence to be led in the prosecution case. (b) The medical records of A from the relevant years (August 1973; January to March 1976; May 1976 to June 1977) have been lost. It is likely that these records would not corroborate A's version of events. (c) The contents of the social welfare exhibit do not corroborate the assertion made by A that she was frequently beaten by the first respondent. (d) Because A's Uncle Maru is dead, his evidence is lost. Carol Rata and Aunty Elene are unavailable. There is a suggestion in A's 2006 statement made to the New Zealand Police that A complained to Uncle Maru, Carol Rata and Aunty Elene about the first respondent's sexual advances to her and that those persons had indicated that they would take steps to remove A from the first respondent's home. Because the social welfare exhibit contains no reference to these matters, A's evidence that she complained to these persons is challenged. It is likely that their evidence would not have corroborated A's version. A similar submission was made in respect of A's maternal grandmother, Dolly, who has also died. (e) The primary judge correctly identified (at [54] of his Reasons) the lost opportunity for the first respondent to gather important information from those who had labelled A as an habitual liar in order to destroy her credit in cross-examination.

Failure to Give Reasons 101 New Zealand submitted that the primary judge failed to make clear in his Reasons precisely what material was being relied upon from the social welfare exhibit and also failed to make clear what use he made of that material. 102 When a judge decides an application, he or she is under a duty to provide reasons for his or her decision. That duty usually incorporates an obligation to expose the path of reasoning which led to the conclusion reached by the judge (Hunter v Transport Accident Commission (2005) 43 MVR 130 at [21] per Nettle JA; see also Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-281). In Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241, Heerey and Weinberg JJ, at [45]-[46] (p 249), expressed some reservations about the statements of principle articulated by Nettle JA in Hunter. In Kovan Engineering, their Honours sounded a word of caution against requiring trial judges to deal with every fact and every argument. Such an approach would lead to overly lengthy judgments and delays in the resolution of disputes. These outcomes would not be in the public interest. 103 The obligation to give reasons does not require lengthy or elaborate reasons (Soulemezis at 280D). The essential ground or grounds upon which the decision rests should be articulated (Soulemezis at 280D). 104 In Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31, at [40]-[41], the Full Court said: 40 Clearly, a trial judge is under an obligation to give reasons for his or her decision. The rationale for the obligation has been discussed in a number of cases. It is sufficient to refer to two cases. In Pettitt v Dunkley [1971] 1 NSWLR 376 ("Pettitt v Dunkley"), Moffitt JA said (at 388) that a court or judge, including an intermediate court of appeal, is under an obligation to give reasons "so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court". In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ("Soulemezis v Dudley (Holdings) Pty Ltd"), McHugh JA (as his Honour then was) said (at 279) that the giving of reasons for a judicial decision served at least three purposes: first, "it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision"; secondly, "the giving of reasons furthers judicial accountability"; and, thirdly, the giving of reasons enables practitioners, legislators and members of the public to ascertain "the basis upon which like cases will probably be decided in the future". McHugh JA went on to say (at 280-281) that the extent of the duty to give reasons was related to the function to be served by the giving of reasons, and he gave as an example of that proposition the need to give more elaborate reasons where legislation gives a right of appeal against a decision than where no appeal lies. 41 The nature and content of the duty to give reasons has been discussed in a number of cases. In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Gray J (with whom Fullagar and Tadgell JJ agreed) said (at 18) that the adequacy of reasons will depend on the circumstances of the case. The reasons of a trial judge will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based, or justice is not seen to have been done. In that case, Gray J said that the trial judge's reasons were inadequate because his reasoning process was not revealed to the appeal court, such that a judgment could be made as to whether he had fallen into error. His Honour also said that the insufficiency of the reasons had the consequence that justice was not seen to be done. To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant. 105 At [43]-[45], the Full Court said: 43 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 ("Beale v Government Insurance Office of NSW"), Meagher JA considered the content of the obligation to give reasons. He emphasised the point that there is no mechanical formula which can be applied to determine whether adequate reasons have been given. He considered that there were three fundamental elements in the obligation to give reasons. First, the court or judge should refer to relevant evidence and if there is conflicting evidence, reference should be made to both sets of evidence. Secondly, the court or judge should set out the material findings of fact and identify his or her ultimate factual conclusions. Thirdly, the court or judge should provide reasons for making his or her findings of fact and conclusions, and reasons in applying the law to the facts found. 44 In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1, the Victorian Court of Appeal discussed the nature and content of a trial judge's obligation to give reasons in some detail (at 31-34 [101]-[106]). At 43 [157] the Court said: The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the court's conclusions. The court need not deal in terms with evidence when its importance falls away because of the manner in which the court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored. [Citations omitted] 45 In Hunter v Transport Accident Commission (2005) 43 MVR 130 ("Hunter v Transport Accident Commission"), Nettle JA considered the extent of a judge's obligation to give reasons in the case of a decision made under s 93(4)(d) of the Transport Accident Act 1986 (Vic). With respect, his Honour's analysis provides a helpful summary of what we think are the appropriate working principles. He said (at 136-137 [21]): [quotation omitted] 106 We shall approach our consideration of this ground of appeal with the observations we have noted at [102]-[105] above in mind. 107 There is a difference between a failure to articulate one's reasoning process, on the one hand, and the articulation of an erroneous reasoning process, on the other hand. 108 In the present case, at [38]-[41] of his Reasons, the primary judge referred to those entries in the social welfare exhibit which recorded opinions to the effect that A had a propensity to exaggerate and lie. In those paragraphs, he also referred to other entries which recorded that A had complained that the first respondent had engaged in inappropriate conduct towards her involving sexual molestation. At [49] and [54] of his Reasons, his Honour again referred to entries in the exhibit which recorded opinions to the effect that A was prone to exaggerate and lie. His Honour then said that "… the events and circumstances which were foundational to these opinions could, potentially, have been (and would still be) …" an important source of material with which to cross-examine A at the first respondent's trial. This last observation is based entirely upon a consideration of the entries which recorded that A had a propensity to lie and exaggerate coupled with speculation by his Honour as to the investigations which might have been carried out in light of those entries and further speculation by his Honour as to the use that might have been made at the trial of the results of those investigations had they been carried out. 109 We think that the process of reasoning undertaken by the primary judge which led to his conclusion that it would be unjust to surrender the first respondent to New Zealand is sufficiently exposed at [54] of his Reasons (when read with [38]-[41] and [49] of those Reasons). We do not agree that his Honour failed to give adequate reasons for his decision. 110 However, for reasons which we shall now explain, we think that his Honour erred in coming to the conclusion that it would be unjust to surrender the first respondent to New Zealand.

Errors in Reasoning 111 This Court should assume that any trial of the first respondent on the charges in respect of which extradition is sought will be fair (Moloney at [36]-[37] (p 259)). 112 The concept of "injustice" in the composite expression "unjust, oppressive or too severe a punishment" is primarily concerned with the conduct of the trial (Moloney at [65]-[73] (pp 263-265); Kakis at 782-783; Perry v Lean (1985) 39 SASR 515 at 537; Venkataya at 165C-E). 113 The first respondent relied upon s 34(2)(b) and (c) as providing the reasons why it would be unjust to surrender the first respondent to New Zealand. 114 At [86]-[95] above, we have considered the first respondent's submissions directed to s 34(2)(b) and rejected them. 115 We shall now consider the question of whether it would be unjust to surrender the first respondent to New Zealand for any other reason. 116 There is no doubt that "… a lengthy period has elapsed since (the offences) were allegedly committed". It is now more than 37 years since August 1973 and between 33 and 34 years since early 1976 and mid-1977. 117 It is also true that most of this delay cannot be laid at the feet of the first respondent. There is no evidence which would enable us to conclude that, once A left the first respondent's home permanently in late 1977 or 1978, the first respondent should bear some responsibility for the delay which occurred after that time. 118 In Venkataya at 165E-F, Sackville J observed that the determination as to whether an order for surrender would be unjust or oppressive is a question of fact or, at least, a question of mixed fact and law. We agree. At 165G-166C, his Honour said: … (v) The question under s 34(2) is not whether it was unjust or oppressive for the authorities to charge the accused, but whether, on the particular facts of the case, it would be unjust to remove him or her to that jurisdiction: Perry v Lean, at 519, per Jacobs J. Each set of circumstances must be assessed to determine whether injustice or oppression is present: Perry v Lean at 537, per Olsson J. (vi) In determining whether there is injustice or oppression to an accused, the gravity of the offence charged is a relevant (and, I would add, very important) consideration: Perry v Lean, at 537; White v Cassidy (1979) 40 FLR 249. The "offence" in this sense refers to the facts and circumstances of the alleged conduct, rather than the theoretical nature of the offence: Edmonds v Andrews, at 421. (vii) The extent of any delay in instituting a prosecution, the cause of the delay and the consequences flowing from it are relevant and perhaps decisive: Perry v Lean at 537. However, if the delay is not due to the conduct of the alleged offender, the consequences of the delay are more significant than its cause: Edmonds v Andrews at 421-422. Mere delay without evidence that it has caused injustice or oppression, is not enough: White v Cassidy at 253. 119 In the present case, the Court's attention should be focussed on the consequences of delay and the question whether the delay has caused injustice or oppression. 120 We think that the primary judge erred when he found (at [54] and [58] of his Reasons) that the delay in the present case had resulted in evidence being lost and investigative trails going cold with the consequence that the cross-examination of A would inevitably be severely impaired thereby prejudicing the first respondent's defence against the charges and rendering his trial unfair. With great respect to his Honour, we consider this conclusion to be no less speculative than the propositions advanced by the first respondent concerning "prejudices" which his Honour rejected for the reason that they were speculative. 121 As noted at [66] and [85] above, the opinions and views as to A's propensity to lie which are recorded in the social welfare exhibit are mostly opinions and views of unnamed persons or, if identified, not those of the persons who made the record. Further, the social welfare exhibit does not reveal the basis upon which the views and opinions recorded therein came to be held. 122 The fundamental problem with the approach taken by the primary judge is that it elevates speculation into fact. Assuming for the moment that the investigations described by the primary judge at [54] of his Reasons were something that might have helped the first respondent's defence, there is no evidence that any of the social workers or any of the teachers and other carers who dealt with A in the mid-1970s are now unavailable. On the assumption that the enquiries postulated by the primary judge might be a useful avenue for the first respondent to pursue, it is a matter of pure speculation as to what attempts to pursue such enquiries made now would unearth. 123 Cases involving the alleged sexual assault of children very often come to light many years after the assaults allegedly occurred. In such cases, mere delay will hardly ever be a reason for refusing extradition. In the absence of demonstrated actual prejudice, it should be left to the New Zealand courts to determine the effect of delay. In Bannister, at [35]-[36] (p 432), the Full Court said: 35 As to the question of delay, it is by no means uncommon for prosecutions in connection with multiple sexual offences against children to be launched many years after they were allegedly committed. There is a widely-held perception in the community that victims of such offences are often unwilling to complain, particularly when they are younger, and that the fortitude necessary to do so sometimes comes with age. Delay may still be a bar to such a prosecution, but that is a matter for the prosecuting authority and ultimately, the courts in the relevant trial and appellate structure. We were urged to adopt the view that the passage of 20 years, by itself, should create a prima facie case of prejudice sufficient to render it inappropriate that a prosecution continue, and that in such a case, extradition should be refused. We note that in Clear v Holyoak (supra), the Supreme Court of Queensland allowed extradition at the request of New South Wales in connection with charges involving allegations of numerous acts of sexual misconduct against children between 1964 and 1970. The decision on appeal was handed down in June 1991 so that the delay was, by then, between 21 and 27 years. It is a little difficult to conclude that mere delay of the same order, without any demonstrated actual prejudice, should bar extradition to New Zealand in the present case. It seems that if the offence is serious enough, delay, by itself, may not always be a bar to prosecution, although there will often be other relevant considerations. 36 In any event, the effects of delay are difficult to identify in isolation from the evidence in the case. It will often be better to assess those effects when the full extent of the prosecution case is known. That will usually be after committal proceedings. For present purposes, the relevant question is whether or not it would be unjust or oppressive to surrender the appellant, not whether it would be unjust or oppressive for him to stand his trial. The latter question will not be finally determined by his extradition. The New Zealand courts will still have to consider the consequences of delay and will be in a better position to deal with them than are we at this stage. There is no reason to believe that those courts will be less sensitive to the rights of the appellant in this regard than would the Australian courts. 124 We agree with those observations. They are equally applicable where the alleged victim complained to the authorities more than three decades ago and resurrected the complaint in 2006, as is the case here. 125 In R v Edwards (2009) 255 ALR 399 at [31] (p 405), the High Court said: 31 The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. 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 [Jagoat CLR 34; ALR 583 per Mason CJ, at CLR 47; ALR 594 per Brennan J; Williams v Spautz (1992) 174 CLR 509 at 519; 107 ALR 635 at 640; [1992] HCA 34 per Mason CJ, Dawson, Toohey and McHugh JJ]. 126 Those observations echo remarks to a similar effect made by Gleeson CJ in the NSW Court of Criminal Appeal in R v Adler (unreported, NSWCCA, Gleeson CJ, 11 June 1992) at 4. His Honour said: 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 … 127 Even if the avenues of investigation postulated by the primary judge have now been lost, that state of affairs does not render the surrender of the first respondent to New Zealand unjust. In cases involving sexual misconduct towards children, delays are very common. In all cases, the loss or unavailability of evidence is common. In the present case, the value to the first respondent of the investigations postulated by the primary judge at [54] of his Reasons is entirely a matter of speculation. The loss of the capacity to carry out those investigations, if indeed that opportunity has been lost in any event, does not constitute prejudice of such seriousness as to render the first respondent's trial in New Zealand unfair. The effect of such postulated prejudice is a matter for the New Zealand courts. 128 The same observations may be made in respect of Grace, Uncle Maru, Carol Rata, Aunty Elene, Dolly, the social workers and all the medical records, school records and girls' home records. What the individuals would have said is entirely a matter of speculation. What the records (if they ever existed at all) would show is entirely a matter of speculation. The fact that this evidence might now be unavailable (if that were established) does not render the first respondent's trial unfair. 129 The social welfare exhibit does not specifically mention the August 1973 incidents. On the face of things, this may well be because the file was not opened until mid-1974 or perhaps even later (December 1974). Be that as it may, the fact is that the August 1973 incidents are not mentioned in the social welfare file. The first respondent has that fact available to him, for what it is worth. 130 There are many entries to the effect that A had complained over the years of having been sexually assaulted by the first respondent. However, it is impossible to relate any of those entries to the second or third group of charges laid against the first respondent. 131 It is thus not possible to say whether any of the recorded complaints relate to the matters the subject of any of the charges. It cannot therefore be said with any certainty that any of the matters the subject of the charges were ever investigated by the authorities. 132 The 10 December 1974 beating is referred to in the social welfare exhibit. There can be no dispute that A was severely beaten on that occasion. Originally, A identified the first respondent as her assailant. Then she changed her story and identified Grace, her mother, as the person who assaulted her. As matters presently stand, there appears to be no controversy between A and the first respondent about this incident. In any event, the first respondent has sufficient material available to him from the social welfare exhibit to support any contention that he may ultimately need to advance to the effect that it was not he, but rather Grace, who beat A on 10 December 1974. 133 At times, it seemed as if the first respondent's advocate was submitting that this Court should assess the strength of the prosecution's case and, having done so, should conclude that it is hopeless or so weak that it would be unjust to surrender the first respondent to New Zealand in order to meet that case. These submissions included contentions that D should be regarded as an utterly unreliable witness because she had perjured herself in the first respondent's trial in New South Wales in 2007 where he was charged with committing acts of indecency on D's daughter; that A should be regarded as utterly unreliable because various persons labelled her a liar when she was 10, 12 and 15 years of age; that C would contradict A's evidence in important respects; and that the first respondent would deny committing the offences with which he stands charged. 134 This Court is not permitted to make this kind of assessment of the prosecution case. It has not been put that the case has some fatal flaw or that it is clearly bound to fail. What was put by the first respondent's advocate was that, having regard to the matters referred to at [133] above, the case would not succeed. That conclusion is based upon an assessment of the facts which is an assessment for the New Zealand courts to make, not this Court. 135 We should add that the first respondent's submissions ignore the fact that B has provided a statement to the police which, to some extent, corroborates A's version of events and that no criticism of B has, at this stage, been made by the first respondent. The first respondent's submissions also ignore the fact that New Zealand did not put before the magistrate or the primary judge the full Police Brief (cf Kenneally). 136 For the above reasons, we think that the primary judge erred when he held that it would be unjust to surrender the first respondent to New Zealand and that therefore, subject to the first respondent's Notice of Contention, the appeal should be allowed.

The Notice of Contention 137 By his Notice of Contention, the first respondent seeks to support the orders made by the primary judge upon the basis that it would be either unjust or oppressive or both to surrender him to New Zealand because of changes in his personal circumstances which have occurred between the early 1970s and 2009 when the process of extradition commenced. He also relies upon s 34(2)(b) of the Act. We have rejected his contentions based upon s 34(2)(b) at [86]-[95] above. 138 Matters of this sort are generally regarded as falling within the concept of "oppression" rather than "injustice" in s 34(2) (Venkataya at 165, par (iv)). 139 The primary judge dealt with the question of oppression at [60]-[67] of his Reasons. He reached a different conclusion on the question of oppression from that which had been reached by the magistrate. The magistrate had placed considerable emphasis on the delays in the investigation phase post March/April 2006. 140 The primary judge addressed each of the matters which the first respondent submitted led to the conclusion that, because of the time that has elapsed since the offences were allegedly committed, it would be oppressive to surrender the first respondent to New Zealand. Those matters were: (a) The alleged poor medical condition of the first respondent and the uncertainty of access to medical services in New Zealand; (b) The age of the first respondent; (c) The fact that the first respondent is anxious and depressed about the prospect of being sent to New Zealand; (d) The difficulties which the first respondent will face in finding suitable accommodation and employment in New Zealand if he is extradited and allowed bail pending his trial; (e) The fact that the first respondent will very likely lose his State-provided home on the Central Coast of NSW and have to reapply for replacement accommodation should he successfully defend the charges brought against him. The time which it will take to obtain accommodation is uncertain but could be some years; (f) The impact upon the first respondent of being separated from J, his current wife, whom he has only recently married; and (g) The fact that the first respondent appears to have led a crime-free and stable life on the Central Coast for at least the past 13 years. 141 At [66] of his Reasons, the primary judge fairly summarised all of the matters which had been put on behalf of the first respondent as constituting oppression. That summary was as favourable to the first respondent as it could have been. Yet, ultimately, at [67] of his Reasons, the primary judge held that, when weighed against the subject matter of the charges, those matters were not sufficiently serious to persuade him that it would be oppressive to surrender the first respondent to New Zealand. 142 We are not persuaded that his Honour erred in the conclusion which he reached. 143 Our reasons for this conclusion follow.

The Loss of Subsidised Housing 144 It was submitted on behalf of the first respondent that, if he is extradited to New Zealand, he will almost certainly lose the State-provided house which he currently occupies on the Central Coast of NSW. The evidence showed that he has occupied his current house for approximately 14 years. The evidence also established that, if the tenant of a State-provided house is imprisoned and not released from prison within three months of being imprisoned, the tenancy will ordinarily be terminated and then immediately transferred to another household member living in the property when the tenancy was terminated. In the present case, J does not qualify for that benefit because she is not entitled to permanent residence in Australia. If the first respondent is absent from the property for a period in excess of three months, he will probably lose the right to occupy that property but would be in a position to make a further application for State-provided accommodation as soon as he is free to do so. He could then apply for priority. If given priority, he would be likely to be rehoused within three to six months (assuming he is otherwise legitimately entitled to the benefit of State-provided housing). If not given priority, it is difficult to predict how long it would take for State-provided housing to be allocated to the first respondent. The first respondent gave evidence before the magistrate that the period that he might have to wait in that event might be as long as 11 years. That assertion was not supported by any other evidence. 145 It is likely that some inconvenience will be caused to the first respondent should he be extradited to New Zealand. However, the extent of that inconvenience seems to us to be largely a matter of speculation. It is quite possible that the first respondent could be rehoused within a matter of months should he be in a position to take up an appropriate offer from the Department of Housing.

The First Respondent's Age and Ailments 146 The evidence was that the first respondent currently suffers from the following medical conditions: (i) Hypercholesterolaemia; (ii) Hypertension; (iii) Gouty arthritis; (iv) Osteo-arthritis; (v) Bilateral olecranon bursitis; (vi) Peripheral neuritis; (vii) Enlarged prostate; (viii) Anal fissure; (ix) Haemorrhoids; and (x) Anxiety and depression. 147 It may be observed at once that, until arrested in aid of the current extradition process, the first respondent was working full time as a warehouse manager. In that job, he did physical work in the warehouse. He was also prepared to take up employment with his sister and her husband on a part time basis as a storeman. It appears that he is more than capable of working in that capacity which involves physical work. He suggested as much when interviewed on 22 April 2010 by officers of DIAC in respect of J's extant visa application. 148 New Zealand arranged for the first respondent to be interviewed and examined by Dr Craig Lilienthal in early July 2010. Dr Lilienthal had available to him all of the reports previously furnished to the first respondent and the magistrate by the first respondent's various treating doctors and also had the benefit of a comprehensive interview with the first respondent. Dr Lilienthal provided a report dated 5 July 2010 which was tendered before the primary judge. 149 Dr Lilienthal's conclusions are found on the last page of his report. His conclusions were expressed as follows: Summary - 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. 150 To some extent, Dr Lilienthal's concerns about the mental health of the first respondent were based upon the proposition that J would not travel to New Zealand with him. Whilst that is quite likely, it may not necessarily be so. 151 In any event, Dr Lilienthal's report makes clear that most of the first respondent's medical conditions are minor and a function of his age. They will not prevent him from travelling to New Zealand. Nor will he be unable to access adequate and appropriate treatment for them in New Zealand. The first respondent's ailments do not warrant being accorded much weight in favour of refusing extradition. Neither should Dr Lilienthal's concern for the first respondent's emotional wellbeing, having regard to the limited evidence about the extent of his anxiety and depression.

The First Respondent's Inability to Support Himself in New Zealand 152 It was asserted on behalf of the first respondent that he would be unable to secure appropriate accommodation in New Zealand pending his trial and that he has no prospect of being employed there. These contentions did not rise above mere assertions. Whilst it may be accepted that, given his age and lack of recent contact with New Zealand, the first respondent may well have difficulty in securing employment there, his current Centrelink pension will continue to be paid to him whilst he is detained in New Zealand. Of course, if bail is refused or not requested, there will be no difficulty in the first respondent being accommodated and looked after pending his trial. 153 The first respondent had been working for many years until his arrest in September 2009. His gross salary and related benefits for the year ended 30 June 2008 was almost $62,000. For the year ended 30 June 2009, it was just over $58,000. 154 There is no reason why the Court should assume that, if the first respondent is granted bail, he will be unable to secure appropriate shelter and food pending his trial.

Aggravated Poor Prospects of Future Employment 155 It was submitted on behalf of the first respondent that, if he is extradited, his future prospects of employment in Australia will disappear. He has now lost the employment which he had for the last 14 years. But that loss flowed from his arrest and not from his extradition. Whilst it may be true that there is little or no prospect that his former employer will rehire him should he be free to return to Australia, there is some prospect that his sister will provide part time employment to him. Before the primary judge, there was evidence that she and her husband were prepared to do so. She gave no evidence as to what the position would be were he extradited to New Zealand. In any event, there was no evidence of any attempts by the first respondent to find work and thus no evidence tending to establish that he will be unable to do so in Australia in the future.

Domestic Upheaval and Emotional Distress 156 The primary basis upon which it was submitted that the first respondent would suffer severe emotional distress and domestic upheaval is the disruption which extradition would inevitably cause to his recent marriage. 157 On 29 August 2009, shortly before his arrest, the first respondent married J. J is a citizen of China. She speaks Mandarin but has little or no English. The first respondent does not speak Mandarin. J had entered Australia via Melbourne Airport on 12 April 2009 on a subclass 580 (Student Guardian) visa. She accompanied her daughter who was then under the age of 18 years. Her daughter began attending school in Melbourne shortly after her arrival. 158 J's Student Guardian visa ceased to have effect on 8 September 2009 when her daughter turned 18. Thereafter, she remained in Australia unlawfully until she was granted a bridging visa. 159 On 9 September 2009, J lodged with DIAC an application for a bridging visa E (BVE). BVE visas are temporary visas granted to those who are unlawfully in Australia, but who may have outstanding matters before DIAC. They are also sometimes granted to permit a short stay to enable unlawful non-citizens to make departure arrangements. J's BVE visa was granted on 15 September 2009 to permit J to depart Australia before 15 October 2009. 160 On 15 October 2009, J lodged an application with DIAC for a subclass 820 partner visa and listed her daughter as a dependant on that application. She was deemed to have lodged an associated BVE application. A BVE visa was then immediately granted to J authorising her to remain in Australia pending the outcome of her subclass 820 visa application. J's subclass 820 visa application is still under consideration by DIAC. The outcome of that application is problematic. If it is unsuccessful, J will most likely have to return to China notwithstanding her marriage to the first respondent. 161 The sponsor of J's subclass 820 application is the first respondent. His extradition to New Zealand will inevitably have a detrimental effect on J's extant visa application. 162 It appears that J first met the first respondent in late May 2009 and that the first respondent proposed to her in early June 2009. Apparently they have lived together at the first respondent's home on the Central Coast since early June 2009. 163 The first respondent attended an interview with officers of DIAC at which he told a number of untruths in order to enhance J's prospects of being granted the subclass 820 visa for which she has applied. He was cross-examined to that effect before the primary judge and conceded as much. It is apparent from the material before the primary judge that both J and the first respondent concealed from DIAC the fact that the first respondent had been arrested in September 2009 and, as a consequence, had lost his job. 164 Before the magistrate, much was made of the fact that the first respondent had married J in ignorance of the extradition charges having been laid. It was submitted to the magistrate, to the primary judge and to this Court that the fact that the first respondent had married J was a powerful reason why he should not be extradited to New Zealand. Of course, J's circumstances are only relevant insofar as they bear upon the first respondent. 165 As the argument before this Court developed, it became clear that the statement made by A to the New Zealand Police at the end of March and in early April 2006 had been provided to the first respondent in 2006 or 2007 as part of the Police Brief provided to him for the purposes of the trial in New South Wales which took place in late 2007. From the date when he was furnished with that statement, the first respondent was aware that A had made a complaint to the New Zealand Police in March 2006 and had given a statement to the New Zealand Police at the end of that month. Obviously, he was also aware of the contents of that statement. 166 It was submitted on behalf of the first respondent that he was entitled to assume, given the passage of time from March 2006 to 2009, that the New Zealand Police had decided to take no action in respect of A's complaint. However, the first respondent gave no evidence to that effect. In fact, the first respondent did not give any evidence directed to the true state of affairs. He did not give evidence of any assumptions that he actually made which took into account the fact that he had been provided with A's March/April 2006 statement at some time in 2006 or 2007. 167 In addition, it is a reasonable inference from the documents in the social welfare exhibit and one which we are prepared to draw that the first respondent was aware during the period 1973 to 1977 that A had accused him on many occasions of having sexually molested her. 168 In those circumstances, the first respondent should be taken to have been aware that A had persistently complained of sexual molestation by him in the 1970s and had resurrected those complaints in early 2006. He was not entitled to make any assumption as to whether or not a prosecution would ensue. In any event, there is no evidence that he did make any assumption about that matter. 169 The first respondent's recent marriage was undertaken in the knowledge of the matters to which we have referred at [165]-[168] above. 170 It may well be that there will be some emotional distress and upheaval for the first respondent if he is extradited to New Zealand. However, its extent may depend upon whether J accompanies him to New Zealand. The evidence before the Court is quite equivocal as to whether J will or will not accompany the first respondent to New Zealand if he is extradited. Obviously, should she do so, there will be difficulties in her returning to Australia given her immigration status. However, this is a consequence of her immigration status, not a consequence of the first respondent's extradition to New Zealand. 171 In the end, we do not think that the potential separation from J and any resultant distress to the first respondent carry much weight in favour of refusing extradition.

Conclusion on Oppression 172 None of the matters with which we have dealt at [144]-[171] above, whether looked at individually or in combination, justify a finding that it would be oppressive for the first respondent to be surrendered to New Zealand. 173 For the above reasons, the learned primary judge was correct in the conclusion which he reached on oppression.

Conclusions 174 In our view, the primary judge erred in concluding that it would be unjust to surrender the first respondent to New Zealand. However, his Honour was correct in the decision which he made in respect of the first respondent's contentions based upon s 34(2)(b) of the Act. He was also correct when he concluded that it would not be oppressive to surrender the first respondent to New Zealand. 175 For these reasons, the appeal should be allowed and appropriate consequential orders made. There will be orders accordingly. 176 On 8 October 2010, Jagot J expedited the hearing of this appeal. On that day, her Honour also ordered that: 3. On the undertaking of the First Respondent, Brian Johnston, to the Court proffered by his solicitor, Emanuell Conditsis, that he will appear at the hearing of the appeal and otherwise as required by the Court and pursuant to s35(6)(g)(iv) of the Extradition Act 1988, the First Respondent be released on bail until the appeal has been heard. 177 At the end of the hearing of the appeal, this Court ordered that, to the extent that it may be necessary, Order 3 made by Jagot J on 8 October 2010 be varied so that the first respondent's bail be continued up to the delivery of judgment. That variation was ordered upon the basis of an undertaking given to the Court by the first respondent by his legal representative that the first respondent would be present in Court when judgment is delivered. We expect, therefore, that the first respondent will be present in Court when these Reasons for Judgment are published. I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson, Foster and Katzmann.

Extradition Act 1988(Cth)ss 3, 28, 34, 35

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