New Zealand v Templeton [2017] FCA 745 | Case summary

Consideration 47 The application for review of the Acting Magistrate's order is brought under s 35(1)(b) of the Act. The first question is as to the nature of the review to be conducted by the Court. 48 Section 35(6)(d) provides that the Court shall review the order "by way of rehearing" and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate. 49 In Kenneally v New Zealand (1999) 91 FCR 292, the Full Court said at [4]: Proceedings for review pursuant to s 35 of the Act are by way of rehearing de novo. 50 As to what is meant by a "rehearing de novo", in Heslehurst v Government of New Zealand [2000] FCA 1311, Branson J said: 27 …I understand their Honours to have meant thereby that the powers of the Court are not exercisable in the proceedings for review only where error by the magistrate can be demonstrated; rather the Court is to determine itself what order is appropriate to be made regardless of whether error by the magistrate is demonstrated (see Allesch v Maunz [2000] HCA 40 at para 23). It seems that the Full Court did not intend to imply that the review was a hearing de novo in the strict sense of a complete re-running of the proceeding under s 34 before this Court as though the hearing before the magistrate had not taken place. Even in a case in which New Zealand applied to the Court for a review of the order of the magistrate, on a hearing de novo in this strict sense, the person whose surrender to New Zealand is sought would have to start again and seek to satisfy the Court of the matters specified in s 34(2) of the Act. 28 In my view, the discretion given to the Court by s 35(6)(d) to "have regard to evidence in addition to or in substitution for the evidence that was before the magistrate" suggests against the review hearing being a hearing de novo in the strict sense which I have identified. It is appropriate, in my view…for an application for review to identify the grounds upon which the applicant says that the order of the magistrate should be quashed and, in the absence of special circumstances, for the consideration of the Court to be limited to those grounds. 51 A magistrate's function under s 34 of the Act is administrative, rather than judicial: Newman v New Zealand (No 2) (2012) 206 FCR 17 at [17]. The Full Court in Kenneally characterised the nature of the review under s 35 of the Act in the way described by Mason J in Builders Licensing Board v Sperway Constructions (SYD) Pty Ltd (1976) 135 CLR 616 at 621 as follows: Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. 52 In Heslehurst, Branson J distinguished the "rehearing de novo" described in Keneally from a "hearing de novo in the strict sense". The difference is that in the former, the applicant need not start all over again and the reviewing court may have regard to both the material before the magistrate and any additional evidence. 53 In Heslehurst, Branson J said that it is appropriate for an application for review to identify the grounds upon which the applicant says the order of the magistrate should be quashed. Her Honour was not thereby suggesting that it is necessary for an applicant to demonstrate error, but was instead referring to a procedural requirement. Although an applicant for review need not demonstrate error, logically the applicant will attempt to persuade the Court that there is a reason to make a decision different to the decision made by the magistrate. An applicant may do so by demonstrating that the magistrate made a legal, factual or discretionary error (including error as to the weight given to relevant factors), or by adducing additional evidence that was not before the magistrate. The grounds relied on by the applicant must be identified in order to give the respondent notice of the case that the respondent has to meet. 54 In this case, the applicant alleges that the Acting Magistrate made legal errors and also submits that the new evidence it has placed before the Court warrants a different decision being made. The new evidence seeks to explain the delay of 22 months between February 2015 and December 2016 for making the application under s 28 of the Act for indorsement of the warrant. 55 The respondent counters by arguing that the Acting Magistrate did not make the errors alleged and by leading further evidence to demonstrate that the delay was the fault of the New Zealand police, and not his fault, and that the delay has caused him detriment. 56 In order to assess the applicant's submission that there were legal errors, it is necessary to examine how his Honour reached the conclusion that the respondent's surrender would be unjust. 57 It is discernible from the Acting Magistrate's reasons that six matters influenced his decision, namely: (a) the length of time that had elapsed since the commission of the alleged offences; (b) that the respondent had mortgage payments to organise; (c) that the respondent had instructed his solicitor that he would make his way to New Zealand in his own time after looking after some matters at home; (d) that the respondent had only lived at two addresses since he returned to Australia; (e) that the respondent had no convictions for breaches of bail; and (f) if the respondent does not return to New Zealand, the matter was unlikely to go away. 58 The Acting Magistrate's reasons fail to adequately explain the connection to all of the matters he referred to and the conclusion that it would be unjust to surrender the respondent. In particular, the relevance of the absence of previous breaches of bail and the fact that the respondent had lived at two addresses in Australia is not readily apparent. It is also unclear whether the Acting Magistrate decided that the delay by the New Zealand authorities was excessive. 59 It is usually necessary that reasons for judgment expose the path of reasoning which led to the conclusion: New Zealand v Johnston (2011) 274 ALR 509 at [102]. Some allowance must be made for the fact that the Acting Magistrate's reasons were given ex tempore: Maviglia v Maviglia [1999] NSWCA 188 at [1]. Even so, his Honour's path of reasoning is not understandable without conjecture or speculation as to the relevance of some of the matters he mentioned. I accept the applicant's submission that the reasons are inadequate. 60 The applicant next argues that the respondent consented to his surrender, enlivening s 33A(2) of the Act. The transcript records that the respondent's solicitor said that his client "instructs that he wishes to contest [the] surrender". The solicitor's subsequent indication that the respondent proposed to return to New Zealand "under his own steam" was not a consent to his surrender. There is a clear difference between a person's offer to voluntarily return and the person being involuntarily surrendered. The applicant's argument is without substance. 61 The applicant submits that it was impermissible for the Acting Magistrate to take into account the respondent's indication that he would voluntarily return to New Zealand. This argument requires construction of the reasons and the relevant statutory provisions. 62 The Acting Magistrate noted that the respondent had instructed his solicitor that he would make his own way to New Zealand. His Honour also noted that if the respondent failed to return to New Zealand, the matter was unlikely to go away, implying that another application could be made for the respondent's surrender. These matters apparently contributed to his Honour's conclusion that it would be unjust to surrender the respondent. 63 On one view, the Acting Magistrate may have reasoned that there was undue delay on the part of the New Zealand authorities, causing the respondent to change his circumstances by taking on the responsibility of buying a house and obtaining a mortgage; and making it unjust for him to be committed to prison pending his surrender without having the chance to get his affairs in order and then return to New Zealand in his own time. 64 Section 34(2) of the Act requires a magistrate to order that the person be released if the magistrate is satisfied by the person that, relevantly, "for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person". The word "for" indicates that there must be a connection between the reason and the injustice, oppression or severity of the punishment. 65 The magistrate may take into account the consequences of surrender, including detention pending trial: see Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [42]. In my opinion, the word "surrender" in s 34(2) of the Act also encompasses the consequences of the orders for surrender that must be made under s 34(1). A necessary consequence of surrender is that the magistrate must, pursuant to s 34(1) of the Act, order that the person be committed to prison pending the surrender of the person to New Zealand. A magistrate might conclude that such imprisonment makes the surrender unjust or oppressive or too severe a punishment because it is clear that the person will ultimately receive a non-custodial sentence, or the person is in poor health, or there are other compelling circumstances that make committal to prison particularly harsh. The consequences of an order for committal to prison pending surrender may, in a particular case, make the surrender unjust, oppressive or too severe a punishment. There was no error in the Acting Magistrate taking into account the fact that the respondent would be committed to prison pending surrender. 66 However, the Acting Magistrate also seems to have relied on the respondent's indication that he would voluntarily return to New Zealand if he were released instead of surrendered. 67 A person arrested under an indorsed warrant who wishes to return voluntarily return to New Zealand might argue that there are special circumstances for bail under s 32(3) of the Act. If bail were granted on that basis and the person did not then go to New Zealand, bail could be revoked. In contrast, where a magistrate orders the person's release under s 34(2) of the Act, the proceeding is at an end. There is no statutory mechanism to reopen the proceeding on the basis that the person failed to honour his or her promise to voluntarily return. In a statutory context providing for involuntary extradition to New Zealand, the absence of such a mechanism tells against any legislative intention to allow a magistrate to take into account an indication that the person will return voluntarily if he or she is not surrendered. The possibility of a further application for surrender being made, which may require a further warrant to be issued and indorsed, is not a sufficient answer. A magistrate is required to determine the immediate application on its own merits. 68 It is impermissible for a magistrate to take into account a person's indication that he or she will voluntarily return to New Zealand when considering whether surrender would be unjust, oppressive or too severe a punishment. Correspondingly, it is impermissible for a Court reviewing a magistrate's decision to take into account such an indication. Accordingly, I will exclude that matter from my consideration. 69 The respondent submits that, having regard to all the evidence presently before the Court, his surrender would be unjust or oppressive. I do not understand the respondent to contend that his surrender would be too severe a punishment. The expression "unjust" is directed primarily to the risk of prejudice to the person in the conduct of the trial itself, while "oppressive" is primarily directed to hardship resulting from changes in the person's circumstances; but there is room for overlapping: New Zealand v Moloney (2006) 154 FCR 250 at [65]-[66]; Kakis v Government of Cyprus [1978] 1 WLR 779 at 782-783. 70 The matters relied on by the respondent in support of his submission are as follows: (a) The delay of 22 months between the alleged offences and the application for indorsement of the New Zealand warrant under s 28 of the Act was excessive. (b) The New Zealand police failed to inform the applicant that a warrant had been issued for his arrest and, in fact, he was misled into thinking that there was no warrant as a result of his telephone discussion with a police officer on 16 February 2015 and the representation by a prosecutor to Mr Gotlieb that there was no warrant. It would have been easy enough for the New Zealand police to contact the respondent throughout the period of nearly two years after the alleged offences. (c) As a result of the delay, the failure to tell him that a warrant had been issued and the misleading conduct, the applicant's circumstances have changed substantially. He has obtained employment which would be disrupted if he were surrendered to New Zealand. He now has a mortgage and vehicle loans and faces significant financial detriment if, as can be expected, bail is either refused in New Zealand or his bail conditions do not allow him to return to Australia. Further, he now has a partner who will be affected financially and emotionally, as will her child. (d) The delay and conduct of the New Zealand police has also caused prejudice to him because he would have returned voluntarily to New Zealand if he had known about the charges in 2015, and he would then have been in a much better position to obtain bail. (e) The respondent is in danger from the alleged victim's associates while he is in custody in New Zealand. (f) The respondent is prejudiced in his conduct of the criminal proceedings by the absence of a transcript of the sentencing proceedings for the co-accused. He is also prejudiced by the co-accused's plea of guilty, the refusal of the co-accused to co-operate in the respondent's defence and the conduct of the co-accused in failing to obtain a sentence indication. 71 I accept that the respondent did not leave New Zealand in order to avoid facing criminal charges. I consider that the delay between the alleged offences and the application for an endorsement of the warrant on 21 December 2016 was excessive. The delay was not the fault of the respondent. The delay on the part of the New Zealand authorities is largely unexplained. The applicant has not explained, for example, why it took some six months for irregularities in the arrest warrant to be identified, a new warrant to be obtained and the Police Commissioner's delegate to grant authority to proceed with the extradition. The applicant has not explained why it then took nine months for the extradition request to be sent to Australia. In the absence of any explanation, the delay seems extraordinary. 72 While police could not normally be criticised for failing to keep a person accused of an offence informed as to whether a warrant had been issued for his arrest, there is uncontradicted evidence that the respondent was misled into thinking that there was no warrant. There is also unchallenged evidence that the respondent would have returned to New Zealand voluntarily if he had been told by late 2015 that a warrant had been issued. 73 While mere delay may, of itself, often be insufficient, the consequences of delay can be significant, especially where the delay is not the fault of the alleged offender: New Zealand v Moloney at [77]; New Zealand v Venkataya (1995) 57 FCR 151 at 166. 74 The respondent's employment will be affected and he faces significant financial detriment because he has a mortgage and vehicle loans which he will be unable to service if he is surrendered and committed to prison to await his surrender. In addition, the fact that he would now return to New Zealand involuntarily means that it is less likely that he would obtain bail. I accept that the respondent and his family are prejudiced by the delay and the misleading conduct of New Zealand police. 75 I do not accept that the respondent is in danger from the complainant's associates while he is in custody in New Zealand. The respondent's evidence in that regard is speculative and, in any event, it is open to him to seek such protection from the prison authorities as he requires. Further, any such concerns will no doubt be taken into account in any application for bail he may make in New Zealand. 76 I do not accept that the respondent has demonstrated that he will be prejudiced in the conduct of his defence or in any sentence. Mr Gotlieb's evidence as to such prejudice is vague, speculative and seems, quite frankly, fanciful. I note that the co-accused's prosecutor has provided his account of the judge's sentencing remarks. I do not accept that a sentencing judge will not be able to achieve parity, notwithstanding the absence of an audio recording of the sentencing of the respondent's co-accused. An assumption must be made that the criminal proceedings in New Zealand will be fair: see New Zealand v Maloney at [36]. Further, the fact that the sentencing will proceed on the basis of less than all of the matters that could relevantly bear on the matter does not make the hearing unfair: R v Edwards (2009) 255 ALR 399 at [31], New Zealand v Johnston at [127]. I do not accept that the co-accused's refusal to co-operate with the respondent means that he cannot have a fair trial. 77 The involuntary extradition of a person means that there will necessarily be a level of disruption to the person's life. The person also faces the loss of his or her liberty while awaiting removal. Those matters are inherent in extradition. The legislation contemplates that something more than the disruption, inconvenience and detriment that will be caused to every person must be shown if the surrender is to be regarded as unjust, oppressive or too severe a punishment. 78 In this case, I accept that because of the delay and the misleading conduct of the New Zealand police, the respondent's position has changed and he and his family will suffer more than the usual disruption, inconvenience and detriment. Against that consideration, the gravity of the alleged offences is an important matter to be taken into account: New Zealand v Venkataya at 166. The alleged offences are serious - involving planned, sustained violence with a weapon. There is also a significant public interest in allowing alleged criminal conduct to be dealt with in accordance with the processes of the criminal law, whether in Australia or elsewhere: In re Arton [1896] 1 QB 108 at 111; Snedden v Republic of Croatia (2009) 178 FCR 546 at [10] (overturned on appeal, but not on this point). 79 In these circumstances, I am not satisfied that because of the lengthy period that has elapsed since the offences were allegedly committed, or for any other reason, it would be unjust or oppressive to surrender the respondent. 80 The Court will order, pursuant to s 35(2) of the Act, that the order of the Acting Magistrate made on 16 January 2017 be quashed and that a magistrate order, by warrant, that the respondent be surrendered to the applicant. 81 I will hear from the parties as to costs. My preliminary view is that there should be no order as to costs. The applicant's argument that it was impermissible to take into account the respondent's indication that he would return to New Zealand voluntarily was raised for the first time in this Court. That was a matter that might well have influenced the outcome if it had been raised before the Acting Magistrate. Further, the Acting Magistrate seems to have been influenced by the delay of the New Zealand authorities, which has still not been adequately explained. In these circumstances, both parties appear to have contributed to the need for the review proceedings. 82 If either party wishes to contend for a different costs order, it should file written submission within seven days. Any submissions in response should be filed within a further seven days. I will decide any question of costs on the papers. In the absence of written submissions being filed in accordance with the orders I propose to make, there will be no order as to costs. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

New Zealand v Templeton

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