An unreasonable conclusion?
7 Both before the primary judge and on the hearing of the appeal Mr Newman pointed to the following as to why it was that it was either unjust or oppressive to order his return to New Zealand:
(a) Old age.
(b) Delay. G first complained to police in New Zealand in December 2008; her sister, R in February 2009. This was, respectively, 47 years and 33 years after the last of the alleged offences. The New Zealand warrant for Mr Newman's arrest was not issued by the District Court at Manukau in New Zealand until June 2010. By then, Mr Newman had not resided in New Zealand for over 30 years. He moved from Australia to New Zealand in 1950. His first wife died in the mid-1970's. He moved back to Australia in 1978. He has resided here ever since, presently by himself.
(c) Absence of contribution to delay. There is no suggestion that Mr Newman left New Zealand so as to avoid being earlier charged. Nor is he in any way responsible for the lag between when the complaints were made and when the arrest warrant was issued in New Zealand. That delay was not explained by New Zealand in the material before the Supreme Court.
(d) Loss of a potential witness. The alleged offences occurred at the then Newman family residence and at a time when Mr Newman's long since deceased first wife lived there.
(e) Deterioration of memory by effluction of time both in relation to Mr Newman and his complainant daughters as well as any other contemporary witnesses.
(f) Absence of appropriate health care for Mr Newman in New Zealand. Mr Newman has suffered from serious illness in the past but it is not contended that he is too ill to travel.
(g) Absence of ties by him to New Zealand and dislocation. Mr Newman has nowhere to live in that country. His daughters, G and R live there but they are the complainants. His sole source of income is an Australian age pension. He has no savings. Neither does he own any real property other than the home in which he resides and that has had to be mortgaged in order to fund his legal expenses to date. He has lived in his present residence for the past six years. Surrender to New Zealand would entail his relocation there for an extended period, perhaps in excess of 12 months with consequential dislocation from the community where he presently lives.
8 Each of these matters was expressly taken into account by the primary judge. In the result and after extensive quotation from pertinent authority, his Honour concluded (at [26]) that these circumstances did not take the present case "out of the reach of the clear statement" of the Full Court of this Court in New Zealand v Johnston (2011) 274 ALR 509 at [123] (Johnston), which his Honour identified as:
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.
Johnston was another case involving a challenge by an elderly man to his surrender to New Zealand in respect of alleged offences against minors committed many decades beforehand which had become the subject of latter day complaint.
9 Applying Johnston, the learned primary judge concluded that it was not unjust or oppressive to surrender Mr Newman. In so doing, his Honour stated (at [29]) that Mr Newman "had not demonstrated actual prejudice which would help to establish injustice or oppression". His Honour observed (at [29]) that, "He may have a sound case for the charges not being proceeded with but that is a decision for the New Zealand courts to make."
10 As to any prospect that Mr Newman might spend a lengthy period on remand in New Zealand while awaiting the disposition there of the charges made against him, his Honour noted that this had been met by New Zealand's undertaking that any application for bail which he made would not be opposed. His Honour also found that issues raised by Mr Newman concerning his accommodation and health care in New Zealand were not, on the evidence, insurmountable. He further found ([30]) that Mr Newman "had not established that he would not be able to receive appropriate health services in New Zealand".
11 The meaning and effect of the Act in its application to the surrender of persons to New Zealand is no new subject. Johnston apart, a five member Full Court examined the statutory scheme with respect to extradition to New Zealand in a joint judgment in an earlier case, New Zealand v Moloney (2006) 154 FCR 250 (Moloney).
12 The analysis of the Act in its application to New Zealand in Moloney confirmed what a reading of it would in any event suggest, which is that, in respect of extradition to that country from Australia, the Act provides for a "much simpler process than extradition to other foreign states" (Moloney at [28]).
13 That greater simplicity of process may be demonstrated by contrasting three features of the scheme in Pt III of the Act in respect of extradition to New Zealand with the general scheme in Pt II of the Act in respect of extradition to other foreign countries which fall within the definition of "extradition country" found in s 5.
14 One distinction is that, unlike extraditions to other countries, a New Zealand extradition need not be initiated (or, where a provisional warrant is first obtained, confirmed) by a formal extradition application to the Executive Government of Australia by a foreign state the furtherance of which is dependent upon a decision of the Attorney-General. Instead, a New Zealand issued warrant, when indorsed by an Australian magistrate in the statutory form, itself provides the foundation for the arrest in Australia of the alleged offender (compare s 12 and s 16 with s 28 of the Act).
15 A related distinction is that, in respect of New Zealand extraditions, no decision-making role at any stage of the process leading up to and including the issue of a surrender warrant is consigned to the Attorney. Instead, the Attorney's role is confined to making extradition decisions in respect of cases where, a surrender warrant having been issued, the person concerned is in custody in Australia in respect of unrelated Australian offences (compare s 36 and s 37 in Pt III of the Act with the roles consigned to the Attorney by s 12(3), s 16 and s 22 in Pt II of the Act).
16 Yet another distinction is that satisfaction as to the absence of an "extradition objection" (defined, s 7) which, to the extent modified by regulations made under the Act in respect of particular foreign states or types of foreign state, is a feature of the general scheme for extradition of persons from Australia as found in Part II, has no place in the scheme in Part III in respect of extraditions to New Zealand. Instead, in New Zealand extraditions, the question is whether the person concerned can satisfy a magistrate or, on review, this Court in its original jurisdiction or a Supreme Court of one or more of the matters set out in s 34(2) of the Act?
17 These distinctions and the relative simplicity of procedure entailed are but a present manifestation of a longstanding assumption by the Australian Parliament, evident in earlier extradition regimes, of fairness on the part of New Zealand, based on the closeness of the relationship between Australia and that country and the high regard in which its courts are held here: Moloney (at para [36] and [37]). That assumption acknowledged, it does not have the consequence that it is irrelevant to take into account differences as between Australian and New Zealand criminal law practice and procedure in deciding whether it would be "unjust or oppressive or too severe a punishment" to surrender a person to New Zealand.
18 As the Full Court observed in Moloney (at [39]), injustice or oppression has a long history in extradition law as a bar to the surrender of a person. It is not necessary for the purpose of determining this appeal to rehearse at length the detailed examination of authority by the Full Court which formed the basis for that observation in Moloney. What may, with respect, be noted is that, detailed though that examination is, it is not apparent from the Full Court's reasons for judgment in Moloney that the Court's attention was drawn to the obiter dicta of a majority in the High Court concerning the meaning of the expression, "unjust or oppressive or too severe a punishment".
19 Those obiter dicta are to be found in Foster v Minister for Customs and Justice (2000) 200 CLR 442 (Foster), a case which involved a challenge to a decision to surrender the appellant, Foster, to the United Kingdom. Though procedurally different from an extradition to New Zealand, extraditions to other Commonwealth countries require that an extraditable person not be surrendered if an official is satisfied that it would be "unjust or oppressive or too severe a punishment".
20 The measuring of a surrender decision on the basis of that criterion in such cases arises in this way. "Commonwealth countries", are defined by reg 3 of the Extradition (Commonwealth Countries) Regulations 1998 (the Regulations), and, unsurprisingly, include the United Kingdom but, by omission from the list, not New Zealand. A criterion similar to that found in s 34(2) is, by s 11 and s 22(3)(e) of the Act and reg 7 of the Regulations, introduced as a consideration supplementary to those specified in s 22(3) of the Act. Thus, in the case of a defined Commonwealth country extradition application, surrender must also be refused if the Attorney (rather than, as with New Zealand, a judicial officer) is satisfied that it would be "unjust or oppressive or too severe a punishment" to surrender the person. The different procedural context in which consideration of that expression arose in Foster does not provide a basis for distinguishing the obiter dicta.
21 In Foster, Gummow and Hayne JJ (at [41] made the following observations about the expression "unjust or oppressive or too severe a punishment":
At least for most purposes, the words "unjust or oppressive or too severe a punishment" will be better understood as providing a single description of the relevant criterion which is to be applied rather than as three distinctly different criteria. The use of the disjunctive "or" might suggest the need to consider each element of the expression separately but for several reasons we think it preferable not to approach the provision in that way. First, there is the fact that the terms used are, as we have already said, qualitative descriptions requiring assessment and judgment. Secondly, the use of the words "too severe" suggests a need for comparison with some standard of punishment that is regarded as correct or just or, at least, not too severe. Thirdly, the considerations which may contribute to the conclusion that something is "unjust" will overlap with those that are taken into account in considering the other two descriptions. It would, then, be artificial to treat the three ideas as rigidly distinct. Each takes its content, in part, from the use of the others.
Later (at [43]), their Honours observed of the expression that it required a value judgment to be made according to Australian standards, not the standards of any other country. In so doing, they referred by analogy and with approval to a suggestion made in relation to Canadian extradition law in La Forest, Extradition to and from Canada, 3rd ed (1991), p 241, that surrender decisions should depend on how such matters are regarded in Canada, not the foreign state. Gummow and Hayne JJ stated (at [41]) that the expression, "requires consideration of how the offence or offences for the prosecution of which the extradition is sought would be viewed in this country". To like effect in Foster (at [95]) is the statement which Kirby J made when considering the punishment element of the expression that, "This must be judged through Australian eyes." The remaining judges in Foster, Gleeson CJ and Gaudron J, did not find it necessary to make any observations about the meaning of the expression.
22 In the course of the hearing of the appeal we drew these obiter dicta in Foster to the attention of the parties and granted leave for the making of supplementary written submissions concerning them. In the result, this elicited a controversy as to whether these dicta were or were not consistent with the approach of the Full Court in Moloney. Mr Newman further submitted and New Zealand agreed that it was a distinguishing feature that, as it appeared in the Regulations and unlike in s 34(2) of the Act, the expression "unjust or oppressive or too severe a punishment" was cast against the background of an assumption of fairness on the part of the requesting foreign state. We have already referred to such an evident assumption in the Act.
23 That assumption noted, if, in respect of a New Zealand extradition, a magistrate or, on review, a court were satisfied that the extraditable person's surrender would be "unjust or oppressive or too severe a punishment" then that person's release must not be ordered. The assumption does not displace the satisfaction criterion set out in the expression. It merely informs consideration of the criterion in its application to the circumstances of a particular extradition. In the case of a New Zealand extradition, those circumstances will, for the reasons given in Moloney, always include a general assumption that the person concerned will, if surrendered, receive a fair trial in that country's courts. If, in respect of a particular case, there is some feature of the criminal law practice and procedure of New Zealand which would not be regarded as fair having regard to Australian criminal law practice and procedure, it would be no answer to point to that general assumption.
24 As a matter of construction, having regard to the context in which the expression appears and the subject matter, scope and purpose of the Act, satisfaction must be achieved by reference to Australian standards. The expression be "unjust or oppressive or too severe a punishment" governs satisfaction with respect to the surrender of a person by Australia to New Zealand. The surrender is an act of state by Australia which is regulated by the Act. It necessarily follows that the touchstone for satisfaction as to whether the criterion established by the expression is engaged in the circumstances of a particular case must be Australian standards for it is Australia that is asked to surrender the person. There is no basis for distinguishing the statements to this effect concerning the expression made by Gummow and Hayne JJ and Kirby J in Foster. To the contrary, we respectfully agree with their Honours' preferred construction and adopt it. The context in which the expression is used in the Regulations is materially similar.
25 Though Foster was not, in terms, considered by the Full Court in Moloney, the subject of whether Australian values supplied the requisite standard was. The Full Court, as had Sackville J in New Zealand v Venkataya (1995) 57 FCR 151 (New Zealand v Venkataya) beforehand, regarded as applicable to the construction of the expression "unjust or oppressive or too severe a punishment" as it appeared in s 34(2) of the Act what had been said by Mahoney JA in Binge v Bennett (1988) 13 NSWLR 578 at 596-597 of the expression as it appeared in Australia's now former legislative regime in respect of interstate extraditions as found in the Service and Execution of Process Act 1901 (Cth) (repealed):
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).
[Emphasis added]
Having in Moloney (at [139]) referred to Binge v Bennett and New Zealand v Venkataya, the Full Court regarded the proposition that Australian standards provided the relevant touchstone as following a "well worn path" in relation to the interpretation to expressions cognate to "unjust or oppressive or too severe a punishment" in English extradition law. Foster demonstrates that that "well worn path" enjoys the support of a majority in the High Court.
26 In Moloney the Full Court refused to overrule an earlier decision of a Full Court constituted by three judges, Bannister v New Zealand (1999) 86 FCR 417 (Bannister). In Bannister the Full Court had held that it was permissible to have regard to the quality of the trial which the accused person would receive in New Zealand and that it would be unjust or oppressive to return the person to New Zealand if the proceedings there would be likely to take a course which, in Australian courts, had been expressly disapproved by the High Court of Australia. Moloney therefore is an example of the deliberate measuring of the criterion provided by the expression "unjust or oppressive or too severe a punishment" by reference to an Australian standard.
27 The learned primary judge was not referred to Foster nor, for that matter, was the Full Court so referred in Johnston, the case which his Honour regarded as particularly applicable by analogy. The subject of whether reference must be made to Australian standards was not expressly addressed in Johnston but in that case the Full Court proceeded on the basis that Moloney and New Zealand v Venkataya were correctly decided.
28 Mr Newman did not submit that an absence of explicit reference by the learned primary judge to a need to measure satisfaction with respect to matters specified in the expression by reference to Australian standards rendered the judgment of the Supreme Court irremediably flawed. More particularly, apart from a jurisprudential difference between Australia and New Zealand in relation to representative charges, it was not submitted that, in respect of the measuring of any or all of the circumstances which his Honour did take into account, there was some other, uniquely Australian standard which, had it been adverted to, might have given Mr Newman the chance of a more favourable outcome. Instead, it was submitted that, accepting that the expression bore the meaning discussed at length in Moloney, the conclusion reached was unreasonable.
29 An appeal from a court exercising the review jurisdiction under s 35 of the Act is an appeal in a strict sense: Johnston at [22]. It is not for us, on the basis that we might have made a different factual value judgment if conducting that review, to interfere with his Honour's conclusion that he was not satisfied that it was "unjust or oppressive or too severe a punishment" to surrender Mr Newman to New Zealand. In an appeal of the kind described, the Full Court's task is to correct error. If the conclusion on the facts were so unreasonable that it could not have been made reasonably error would be present. That is not this case.
30 Viewed against the circumstances which the primary judge did take into account, his Honour's conclusion was one reasonably open to him. Advanced age per se does not confer immunity from prosecution in Australia. Nor does an absence of any particular, current tie with Australia confer upon an individual immunity from prosecution in respect of an offence committed in Australia. These are not peculiarly Australian legal norms but, even if they were, they did not dictate satisfaction that Mr Newman's surrender would be "unjust or oppressive or too severe a punishment". The same is true of the length of time since the alleged commission of the offences charged, the passing in the interval of someone who might perhaps be a witness favourable to a defendant and the lengthy delay in the making of the complaints in respect of the alleged offences. These were all relevant considerations but they were all taken into account. The demise of Mr Newman's wife may have told heavily in favour of being satisfied that it would be "unjust, oppressive or too severe a punishment" to surrender him were it shown that she could have given evidence of an exculpatory nature. As it was, quite what might have been the content of her evidence was entirely speculative.
31 Also taken into account but ameliorated by New Zealand's undertaking not to oppose bail was the contingency that Mr Newman might spend a lengthy period on remand in New Zealand before the charges were dealt with there. His Honour's findings as to accommodation and health care being available to Mr Newman in New Zealand were open to him on the evidence. Neither viewed individually nor collectively do the circumstances of the case dictate that the conclusion of the primary judge was so unreasonable that it could not have reasonably been reached.
32 There was no error in his Honour's treating the question as to whether Mr Newman had a sound case for the charges not being proceeded with as one for the New Zealand courts. Indeed, even if there had been explicit reference to Australian standards, those standards, evident in the assumption upon which Pt III of the Act is cast, would necessarily have included an acknowledgement that any stay application in respect of the charges would receive a fair hearing in New Zealand's courts.
33 Insofar as Mr Newman's appeal is based on an allegedly unreasonable conclusion by the Supreme Court, that ground of appeal must fail.
34 Other bases for interference with the satisfaction based value judgment made in the exercise of the original, review jurisdiction might arise if some relevant consideration had not been taken into account or some irrelevant consideration into account or if some other error of law were present. The "representative charge" ground of appeal is put on the basis not so much that it was relevant but not taken into account but rather that, in so doing, an error of law was made. We now proceed to consider the merits of this ground.