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 Bishop of Oxford (1880) 5 App Cas 214 (at 222-3) and Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106 per Windeyer J (at 134-5). 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, for example, O'Donnell v Heslop at 170; Re Alstergren v Nosworthy [1947] VLR 23 at 29-30; Aston v Irvine (1955) 92 CLR 353 at 366-7; Re Mandel [1958] VR 494; Ex parte Klumper at 163; 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 94-5; Fulcher v Hilt (1985) 61 ALR 359; (1985) 79 FLR 353 at 364-5; Lewis v Wilson (1987) 90 FLR 251 at 253-4; (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 above (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.
82 In Rider v Champness [1971] VR 239, Lush J rejected an application to review a magistrate's decision ordering the applicant's extradition to South Australia notwithstanding that no particulars of the charge had been provided. His Honour observed (at 243-4) that it rested with the person before the court to seek particulars. If he did not do so, he could not later complain of injustice in being required to be surrendered. At least by implication, his Honour accepted that a failure to provide adequate particulars, if sought, could give rise to a finding that it would be unjust to order extradition.
83 In Hempel v Attorney-General (Cth) (1987) 77 ALR 641, French J rejected an application for review of a decision by the Attorney-General to sign warrants of extradition in respect of two applicants whose surrender was sought by Israel. In summary, the applicants contended that they would not receive a fair trial in that country for various reasons. These included that the language of litigation in Israel was Hebrew and interpreters were not provided by the courts, that they had no money to engage legal representation, and that they would be discriminated against because they were non-Jews. His Honour did not deal directly with whether it would be "unjust" in such circumstances, assuming they could be established, to require the fugitives to be surrendered. However, he accepted that an inability to obtain a fair trial in the requesting state could justify an order prohibiting surrender.
84 This has long been the position in England. In R v Governor of Brixton Prison; Ex parte Savakar [1910] 2 KB 1056, the Court of Appeal dealt with a contention that a prisoner should not be discharged on the basis that it would be unjust or oppressive to require him to return to India merely because the rules of procedure and evidence in that country differed materially from those that applied in England. Importantly, however, the Court recognised that there might be circumstances where a trial would take place under conditions described in the order nisi for a writ of habeas corpus as "unknown to the laws of England and repugnant thereto". It accepted that the prospect of such a trial could give rise to the statutory bar then contained in s 10 of the Fugitive Offenders Act 1881.
85 Re Henderson [1950] 1 All ER 283 is to the same effect. There the applicant sought an order for his release under s 10 on the basis that he would not be able to defend himself properly if required to go back to India to stand trial on charges of conspiracy to defraud. He relied upon the fact that there had been considerable delay. He also relied upon the fact that the constitution of the special tribunal that had been set up to try the case (before the applicant was repatriated to England) had changed, and the new members would not see and hear the witnesses for the prosecution themselves, but merely read their evidence. The Court of Appeal held that these were matters for the consideration of the tribunal dealing with the case, and did not form a basis for assuming that the applicant would not obtain a fair trial.
86 It is important to note, however, that Tucker LJ observed (at 287) that the injustice limb of s 10 might be invoked where:
"it appears that the contemplated proceedings, although, perhaps, lawful by the law of the country concerned, are really going to be conducted in a way contrary to natural justice or contrary to our ideas of it." (emphasis added)
87 The position in the United States is less clear. Professor M Cherif Bassiouni, author of the leading text International Extradition: United States Law and Practice (2002), observes (at 893) that the Secretary of State can exercise an open-ended executive discretion, conferred by Presidential order, based on "technical, humanitarian or political grounds". He cites Eain v Wilkes, 641 F 2d 504 (7th Cir, 1981) as illustrating how that discretion is exercised in practice.
88 As previously indicated Binge v Bennett is the leading Australian case on whether it would be "unjust" to require a person to be surrendered if there were doubts about the fairness of any trial that might take place. In that case a group of Aboriginal people were alleged to have engaged in riotous behaviour. They claimed that it would be "unjust or oppressive", within the meaning of s 18(6) of the Service and Execution of Process Act 1901, to surrender them to Queensland.
89 Several bases were put forward for that claim. The evidence suggested that, if committed, they would not get a fair trial before a representative jury in Queensland because of the arrangements of the jury lists, and the regular or invariable practice of those representing the Crown in that State to stand aside from jury service anyone of Aboriginal descent. In addition, seriously prejudicial statements had been made by many people, including a State Minister, asserting the guilt of the accused of the offences charged. Moreover, the provisions of the Bail Act 1980 (Qld) meant that they would be denied bail pending trial and would suffer the burden of prolonged imprisonment in inhumane conditions said to obtain in Queensland gaols. Finally, if convicted they would be incarcerated in similarly appalling conditions.
90 The New South Wales Court of Appeal held that the likelihood that the accused would not receive a fair trial in Queensland was a proper basis for refusing surrender. Kirby P observed (at 584) that s 18(6) had a long history. His Honour noted that the "unjust or oppressive" ground of resistance had been included in the Service and Execution of Process Act from the time it was first enacted in 1901. He added that triviality, lack of good faith, and the "unjust or oppressive" grounds, were "not unknown to private international law as the basis for resisting the extradition of a person from one jurisdiction to another".
91 His Honour accepted that the appellants bore the burden of establishing that s 18(6) was attracted to the circumstances of their case. He also accepted that the burden was a heavier one within a single federal country, such as Australia. He said that this explained why a most stringent test had been adopted to attract the operation of the section. Kirby P observed that normally the courts of one State should have confidence that any particular elements of injustice or oppression would be considered and dealt with according to law by the courts of the receiving State.
92 Nonetheless, his Honour regarded the situation confronting the Court in Binge v Bennett as different in several important respects from the cases that had gone before. The appellants had tendered a great number of affidavits and other documentary evidence to establish that it would be impossible for them to receive a fair trial in Queensland.
93 Campbell J, the trial judge in Binge v Bennett, had excluded much of the evidence upon which the appellants sought to rely. Kirby P concluded that his Honour had been wrong to do so. As Kirby P pointed out, the very existence of s 18(6) contemplated that there might be cases where, notwithstanding the comity observed between the courts of each State to each other, it might be "unjust or oppressive" to return an accused person to another State.
94 Mahoney JA agreed with Kirby P. After stating that the words "unjust or oppressive" had a broad connotation his Honour went on to observe that it was not possible to say that no circumstances could be conceived "in which the nature of the justice system or the incidents of it" could constitute a case of injustice and oppression within s 18(6).
95 His Honour added (at 596-7):
"I do not mean by this that such a matter may readily be established. What is unjust or oppressive must be judged according to the society in which in Australia we now live. That society and its standards may be open to criticism. It may in some respects, require change. But the context in which these words should be understood is the context of the Australian Federation as it exists from time to time. Taking these matters into account I do not think it is possible to say that, for example, no case could in any circumstances be made out which would fall within s 18(6)(c) of the kind here in question. Thus, for example, it might be able to be established that by the warrant a person was to be returned only to a particular court and that in that court at the particular place and time a fair trial would not be able to be had.
…
If … the trial of the person in question had to take place in a place where a fair trial could not be had, I see no reason why such a case could not fall within s 18(6)(c)."
96 Mahoney JA agreed that the matter should be remitted to the trial judge so that the evidence wrongly rejected could be taken into account.
97 McHugh JA dissented. However, his Honour observed (at 598) that he agreed with the majority that evidence would be admissible in an application under s 18(6) "for the purpose of proving that the appellants cannot obtain a fair trial in Queensland". He added that the evidence needed to make out such a case would have to be weighty, but that he did not think that it was an answer to the appellants' contention that their evidence was admissible to say that the judges of Queensland would or should be able to protect them against injustice or oppression.
98 In New Zealand v Venkataya (1995) 57 FCR 151 Sackville J followed Binge v Bennett, and the other cases relied upon by the New South Wales Court of Appeal. His Honour applied the principles set out in those cases to s 34(2) of the Extradition Act.
99 The facts in Venkataya were as follows. In October 1992, complaints were made to the New Zealand police by two former foster children of the first respondent and his first wife. They alleged that a number of serious sexual offences had been committed by the first respondent over a lengthy period between 14 and 20 years earlier.
100 An arrest warrant specifying a number of offences was sought in June 1994. In August 1994 an Australian Federal Police officer obtained indorsement of the warrant and the first respondent, who had by then lived in Australia for many years, was arrested upon it.
101 The magistrate before whom the first respondent was brought ordered his release. He did so on the basis that a number of important records concerning the police investigation that were relevant to the defence had been lost. He also took into account the hardship to the first respondent from the loss of his business if he were forced to return to New Zealand.
102 On review, Sackville J confirmed the magistrate's order for the first respondent's release. His Honour observed that the Extradition Act codified the law relating to extradition of persons from Australia, both to "extradition countries" and to New Zealand. He then summarised the key provisions in Pt III dealing with extradition to New Zealand, and set out in some detail the first respondent's background and circumstances.
103 His Honour noted that the language in s 34(2) was modelled upon s 27 of the Extradition (Commonwealth Countries) Act 1966 (Cth). That language derived from s 18(6) of the 1901 Act, which had governed the extradition of persons from one Australian State or Territory to another until it was repealed in 1992.
104 Sackville J observed that the scheme of Pt III of the 1966 Act had been similar to that of Pt III of the Extradition Act, and that this scheme had been summarised in the joint judgment of Wilcox and Jackson JJ in Narain v Director of Public Prosecutions (at 417). He contrasted the position under the 1901 Act with the new regime created in 1992 whereby although there was power to consider the validity of a warrant and to grant bail, the magistrate had no statutory discretion to refuse to return the person apprehended to the place where the warrant was issued. He observed that although it had been open to Parliament to introduce a similar regime in 1992 for the extradition of accused persons from Australia to New Zealand, it had elected not to do so.
105 Dealing with the construction of s 34(2), Sackville J referred to an extract from the Attorney-General's second reading speech for the Extradition Bill 1987 (Cth) (at 163-4):
"The Bill contains a special part which governs extradition relations with New Zealand. Our close ties with that country have made appropriate a reciprocal regime which bears a very close similarity to the extradition relations between the various Australian States and Territories contained in the Service and Execution of Process Act1901. Fugitives are moved between Australia and New Zealand by a process based on the backing of warrants by magistrates. The whole process is normally handled by the police in exactly the same way as an interstate extradition would be handled."
106 His Honour stated (at 164) that this suggested an intention to assimilate the principles governing extradition to New Zealand generally to those then governing extradition within Australia. Under the 1901 Act, it was well established that an accused person resisting interstate extradition bore a considerably heavier burden in seeking to demonstrate "injustice or oppression" than did an accused person resisting extradition to a different country.
107 Sackville J then said (at 164) that trans-Tasman extradition did not necessarily involve exactly the same considerations as interstate extradition (leaving aside the altered regime introduced in 1992). For example, there was no equivalent to the full faith and credit provision in s 118 of the Constitution in force as between Australia and New Zealand. Nor, of course, were New Zealand courts subject to the superintendence of the High Court of Australia. Each of these factors had played a part in the reasoning of Australian courts in construing s 18(6) of the 1901 Act.
108 His Honour then added (at 164-5):
"This is not to deny the special position of New Zealand in relation to the extradition of alleged offenders. Furthermore, it is clearly appropriate that weight should be given to the legislative intent to establish a regime bearing "a very close similarity" to that in force within Australia prior to the Service and Execution of Process Act 1992. The intention reflects a legislative judgment that is based on "the propinquity of New Zealand and the similarities between the laws and legal system of that country and those in Australian jurisdictions" (Narain v DPP, at 419).
Despite the similarities between the two legal systems and the undoubted duty of the New Zealand courts to ensure that an accused person receives a fair trial, s 34(2) of the 1988 Act, in terms, contemplates that the fact that a lengthy period has elapsed since the alleged offence may make it unjust, as well as oppressive, to surrender the accused to New Zealand. It may be that only in an unusual case would the forensic disadvantages to the accused occasioned by the lapse of a "lengthy period" since the alleged offences be significant in determining whether the accused would suffer injustice or oppression in being returned to New Zealand. Nonetheless, the legislation, in my view, contemplates that, depending on the circumstances, this may be the case."
109 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.
110 This leads us to Bannister, the case directly under challenge in this appeal. There, a Full Court (Spender, Kiefel and Dowsett JJ) allowed an appeal from a single judge of the Supreme Court of Queensland who had overturned a decision of a magistrate discharging the appellant under s 34(2).
111 The facts were as follows. In February 1998, the District Court of New Zealand had issued a warrant for the arrest of the appellant on two charges each of rape and indecent assault alleged to have occurred in 1975 and 1976. The operative terms of the warrant were as follows:
"On the 20th day of February 1998 informations were laid that WILLIAM TUHURU DAVID BANNISTER of 104 PT CARTWRIGHT DR BUDDINA 4574 QLD AUSTRALIA … at Auckland on between 01/01/75 and 23/09/75 and between 24/09/75 and 31/03/76
BEING A MALE RAPED A FEMALE (2) CHR 2652
between 01/01/75 and 23/09/75
INDECENT ASSAULT ON A GIRL (2) CHR 2632"
112 Plainly, the warrant did not particularise specific incidents, but rather alleged acts of rape and indecent assault, each between certain dates. It was the practice in New Zealand to bring what were known as "representative" or "specimen" charges. Indeed, the submissions filed on behalf of New Zealand in Bannister described the charges as being of "a representative nature" and asserted that they related to a course of conduct that took place in Auckland between 1975 and 1976.
113 Understandably, that submission evoked concern on the part of the Full Court. After taking instructions, counsel for New Zealand referred to the decision of the New Zealand Court of Appeal in R v Accused [1993] 1 NZLR 385. There, Cooke P outlined and affirmed what he described as "the practice of specimen or sample counts".
114 The difficulty, so far as the Full Court was concerned, was that the High Court had made it plain in S v The Queen (1989) 168 CLR 266 that the practice of using representative or specimen counts (which incidentally existed in England, as well as New Zealand) was unacceptable. Indeed, Dawson J, who delivered the leading judgment, described the practice (at 276) as "clearly objectionable".
115 It is necessary to say something about the decision in S. There an indictment charged a father with three counts of carnal knowledge of his daughter. Each count charged one act of carnal knowledge on a date unknown within a specified period of 12 months, namely 1 January 1980 to 31 December 1980, 1 January 1981 to 31 December 1981, and 8 November 1981 to 8 November 1982. The trial judge rejected an application on behalf of the accused for an adjournment pending the supply of particulars. He also rejected a further application that the prosecutor nominate or identify the acts the subject of the counts. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. She also gave evidence of numerous further acts of intercourse over a period of two years until she left home in November 1982. She could not remember the details or frequency of the acts, other than that they had occurred "every couple of months for a year". The accused was convicted on each count.
116 Dawson J noted that notwithstanding that each count charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count. The trial judge simply left it to the jury to determine whether the accused had had carnal knowledge of his daughter "on the three occasions cited in the indictment".
117 Dawson J had no difficulty in concluding that the indictment was bad for "latent ambiguity". In arriving at that conclusion, his Honour simply applied the well-known reasoning of Dixon J in Johnson v Miller (1937) 59 CLR 467 (at 486). Dawson J added that there was obvious embarrassment to the accused in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged. The occasions upon which the offences alleged took place were unidentified, and the accused was, in effect, reduced to a general denial in pleading his defence. He was precluded from pleading more specific, and, therefore, more effective defences, such as alibi.
118 His Honour added that the trial had proceeded in a manner that made it impossible to deal with the admissibility of similar fact evidence. More fundamentally, the case having proceeded as it did, it was possible that individual jurors identified different occasions as constituting the relevant offences. This would mean that there would be no unanimity in relation to their verdicts. It was also possible that the jury had reached their verdicts without identifying any particular occasions. In his Honour's view, such a result was tantamount to their having convicted the accused, not in relation to identifiable offences, but only on the basis of a general disposition on his part to commit offences of the kind charged.
119 Toohey J, and Gaudron and McHugh JJ delivered separate concurring judgments. Brennan J dissented.
120 In KBT v The Queen (1997) 191 CLR 417 the High Court affirmed the reasoning in S. There the issue was once again the use of multiple unparticularised counts of offences of a sexual nature. The majority (this time including Brennan CJ) said (at 424):
"Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open." (footnote omitted)
121 In R v Accused (decided after S, but before KBT) the New Zealand Court of Appeal considered and expressly rejected the reasoning of the High Court in S. It preferred to follow the approach taken in England, which held that the use of specimen counts was acceptable.
122 The Full Court in Bannister was critical of the decision in R v Accused. It observed that the Court of Appeal had given virtually no consideration to the concerns expressed by the majority in S, and had simply accepted the dissenting views of Brennan J (which were apparently consistent with longstanding New Zealand practice).
123 The Full Court said in Bannister (at 429-30):
"That the incidents of the system to which the alleged offender is to be extradited are relevant considerations for present purposes also appears from the decision of the Full Court of the Supreme Court of Queensland in Clear v Holyoak [1993] 1 Qd R 376. Derrington J said of the analogous provisions of the Service and Execution of Process Act (at 379):
"Because of comity between the States it is accepted as a general proposition that injustice or oppression will be remedied by the State to which the person is to be returned … and, the onus being upon that person to show injustice or oppression, a stringent test is adopted where the system of another State is questioned … But where it is seen that the product of the State's system will in fact lead to an unjust or oppressive result to the person who is returned to it, then the refinements of these considerations must give way to the clear prescription of the statute."
In Perry v Lean (1985) 39 SASR 515 the Full Court of the Supreme Court of South Australia considered those same provisions. Jacobs J said of s 18(6) which is of similar effect to s 34(2) of the Act (at 519):
"… the reported cases in which that section has been successfully invoked recognise that the question arising under that section, namely whether 'extradition' is unjust or oppressive, is not to be answered by deciding whether it is unjust or oppressive to charge the defendant. The question is whether it would, on the particular facts of the case, be unjust or oppressive to remove the accused into the jurisdiction of the court in which the charge has been preferred."
His Honour (at 521) quoted with apparent approval the following extract from the judgment of Tucker LJ in Re Henderson [1950] 1 All ER 283:
"These are all matters which can - and, no doubt, will - be considered by the tribunal of any civilized country which is dealing with a criminal matter. The length of time that has elapsed will, no doubt, be a relevant consideration for this tribunal to consider in weighing the evidence, but there is nothing in the material evidence which would, in my view, show that it is impossible for the applicant to obtain justice. … I think that the kind of matters with regard to which this Court would act would be where it appears that the contemplated proceedings, although, perhaps, lawful by the law of the country concerned, are really going to be conducted in a way contrary to natural justice or contrary to our ideas of it."
At that page, Jacobs J continued:
"No two cases are alike, and what the court is required to do is to weigh the whole of the circumstances in order to determine not merely whether there is injustice or oppression, but whether it would be on balance injust and oppressive 'to return the person', for that is the critical, and indeed the only, issue."
Mohr J appears to have taken a similar view.
We conclude that it is appropriate, in considering whether, "for any other reason" it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive. Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar. This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels. We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point, the two systems have diverged. In considering the present application, we can only apply the decision of our own ultimate appellate court.
We do not consider that every minor difference in procedure would justify our declining extradition. Such a step will only be justified if the procedure likely to be followed in the country to which extradition is sought will render it unjust or oppressive to surrender the alleged offender. In the present case, injustice or oppression must be measured by considering the High Court's view concerning the practice which will be followed in New Zealand, which view is that it is most unlikely to result in a fair trial. The High Court has recognised that some aspects of the potential unfairness may be avoided by appropriate directions to the jury but clearly, not all of the problems can be met in this way. For example, there is nothing in R v Accused suggesting how a New Zealand court will ensure that all members of the jury base conviction on any count upon substantially the same alleged conduct. This is not merely a theoretical problem, but a real danger in the view of the High Court. In R v Accused, the New Zealand Court expressly approved the direction given by the trial judge in S. The High Court clearly considered it to be inadequate. Thus we conclude that proceedings in New Zealand would probably take the form expressly disapproved in S." (emphasis added)
124 New Zealand challenged the correctness of this reasoning. It submitted that, whatever may have been the position under the Service and Execution of Process Act 1901, or the Fugitive Offenders Act 1881, the statutory bar in s 34(2) of the Extradition Act did not entitle an Australian court to have regard to the "incidents of the system" and the "quality of the trial" in New Zealand.
125 Bannister was a very unusual case. The Full Court was evidently influenced by the strength of the High Court's criticisms, in both S and KBT, of the use of representative or specimen charges.
126 In Kenneally, the Full Court traced the history of s 34(2) as far back as 1985 when s 27(b) was introduced into the Extradition (Commonwealth Countries) Act 1966. The Full Court said (at [46]-[47]):
"It seems to us to be clear enough that the 1985 amendment, which has been carried forward into the present Act, was intended to bring New Zealand extradition into line with interstate extradition, as it stood in 1985. The amendment to the Act was designed to widen the scope for a refusal to extradite by removing the limitation which existed arising from the need to establish one of the matters set out in s 27(a), (b) or (c) of the 1966 Act as a condition precedent to release, and by providing for a more general basis upon which extradition could be challenged. An example of this wider approach to the basis for refusal of extradition is to be seen in Bannister v New Zealand (1999) 86 FCR 417, a decision of the Full Court in which it was held to be unjust and oppressive to return the appellant to New Zealand in circumstances where his trial in that country would be conducted in a manner which had been disapproved of by the High Court of Australia as objectionable.
The introduction into the Act of the expression "for any reason, it would be unjust, oppressive or too severe a punishment" seems to us to make directly applicable to the present section a long line of authority dealing with discretion pursuant to the Service and Execution of Process Act. It also avoids the necessity to construe s 34(2)(b) in such a way as to cover the situation where there is a hopeless case, but no evidence of any collateral purpose or lack of bona fides."
127 The Full Court in Kenneally regarded Bannister as simply the latest in a long line of cases in which it was recognised that extradition could be refused if it would be unjust or oppressive to require the surrender of the accused.
128 The correctness of Kenneally was not challenged before us. That is hardly surprising since Kenneally simply applied the reasoning of the High Court in Aston v Irvine. The significance of Kenneally is that the Full Court regarded Bannister as having been correctly decided. That makes New Zealand's task, in challenging Bannister, all the more difficult.