Consideration
26 The application for review is brought under s 35(1)(a) of the Act, in respect of orders made under s 34(1)(c) and (d).
27 Section 35(6)(d) of the Act 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. The review is by way of "rehearing de novo": Kenneally v New Zealand (1999) 91 FCR 292 at [4]. This means the Court is to determine for itself what order is appropriate regardless of whether error by the magistrate is demonstrated: Heslehurst v Government of New Zealand [2000] FCA 1311 at [27].
28 Although an applicant need not necessarily demonstrate error on the part of the magistrate, there is a practical necessity to point to some reason why the Court ought to make a different order. An applicant may seek to do so by demonstrating that the magistrate made some legal, factual or evaluative error (including error as to the weight attributed to particular factors), or by adducing additional evidence.
29 In this case, the applicant alleges that the magistrate's decision was wrong insofar as insufficient consideration and weight was given to particular matters. The applicant has also adduced new evidence to seek to demonstrate that his extradition would be "unjust, oppressive or too severe a punishment" within s 34(2) of the Act.
30 Whether the extradition would be "unjust, oppressive or too severe a punishment" requires something more than the disruption, inconvenience and detriment inherent in the involuntary extradition of any person: New Zealand v Templeton [2017] FCA 745 at [77].
31 The word "unjust" is directed primarily to the risk of prejudice to the person in the conduct of the trial itself, while "oppressive" is directed primarily to hardship resulting from changes in the person's circumstances; but there is room for overlapping of those concepts: New Zealand v Templeton at [69]; New Zealand v Moloney (2006) 154 FCR 250 at [65]-[66].
32 Any hardship that a person's extradition might create for the person's family is only relevant insofar as such hardship adversely affects the person. In Bannister v New Zealand (1999) 86 FCR 417, the Full Court held at [34]:
As to the broader question of the relevance of the interests of the appellant's family in determining the matters prescribed by s 34(2), we are inclined to the view expressed by Green CJ in White v Cassidy (1979) 40 FLR 249 at 255 where his Honour said:
"I do not regard the hardship or prejudice to his wife and children that the respondent's return to New South Wales might cause as being relevant considerations by themselves: the injustice or oppression must relate to the respondent himself. But in so far as those considerations affect the respondent, and in so far as they affect his attempts to start a new life, they are material to the question of whether his return would be oppressive to him."
33 In cases involving alleged sexual offences against children, there may often be a lengthy period of delay between the time the alleged offences took place and the time the alleged perpetrator is charged and exposed to extradition proceedings. In such cases, mere delay, without demonstrated actual prejudice, will not necessarily bar extradition: Bannister v New Zealand at [35]-[36]. The Court's attention should be focused on the consequences of delay and the question of whether the delay has caused any injustice or oppression to the alleged perpetrator: New Zealand v Johnston (2011) 274 ALR 509; [2011] FCAFC 2 at [119].
34 The gravity of the alleged offences is an important matter to be taken into account: New Zealand v Venkataya (1995) 57 FCR 51 at 166; New Zealand v Johnston at [32]. Further, there is 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].
35 In this case, the applicant argues that the magistrate erred in evaluating the weight given to the following matters:
(1) the evidence of the impact the applicant's extradition might have on his mother's health and treatment requirements;
(2) the delay by the complainant in making the complaint to police and the delay by police in investigating the complaint; and
(3) the impact the applicant's extradition might have on his wife and their financial wellbeing insofar as they expect to lose a commercial cleaning contract.
36 The parties relied upon affidavits sworn or affirmed after the magistrate's determination, although some annexures to those affidavits predate that hearing and appear to have been relied upon in the proceeding before the magistrate. The parties did not identify which parts of those affidavits were before the magistrate. It is apparent from the applicant's submissions that he also argues that new evidence he has placed before the Court in respect of specific matters warrants a different decision being made.
37 I will consider the applicant's arguments by first examining the magistrate's reasons and then assessing the evidence before this Court in respect of the matters particularised in the applicant's application.
38 It is convenient to consider the first matter together with the third matter particularised under the applicant's sole ground of review.
39 In respect of the evidence concerning the impact the applicant's extradition might have upon his mother and his wife, the magistrate referred to affidavits of the applicant's wife which discussed, "the ill health of the mother of the defendant, and that family business Piata Cleaners, and the effect the ill health has upon Ms Tera due to the defendant not being able to assist with that dialysis requirements, as well as the potential or likely loss of that what appears to be the main contract for that family business".
40 The magistrate summarised two other affidavits which discussed Piata Cleaners' ability to service its cleaning contract with Electro Group Training Centre. His Honour then referred to a, "report from Professor Carmel Hawley as to those dialysis and other requirements of the mother of the respondent or defendant".
41 In respect of the evidence as to the impact the applicant's extradition might have on his mother's health and treatment requirements, his Honour accepted that, "there is ill health of her and that requirement for dialysis and effectively 24-hour care".
42 As to the impact the applicant's extradition might have on his wife and their financial wellbeing, his Honour found:
It is feared that should [the extradition] occur, the respondent's wife is likely to be left homeless. I don't consider that that risk of homelessness has been made out on any of the material…
I note that whilst there is a risk of losing that contract with Electro Group Training Centre, it does not mean that that family business Piata Cleaners will not be able to find other contracts or has not been seeking other contracts or works.
43 It may be noted that the respondent had submitted that:
…it must also be borne in mind that the hardship of extradition is not, in and of itself, on the family. It's on the respondent. So that's the principal consideration…. It is relevant that hardship caused to the family would then flow on to the respondent, but principally that is the consideration to bear.
44 His Honour then concluded that:
Having considered those - that material, those affidavits before me, and those authorities, as well as those written and oral submissions… I am not satisfied, on that test of the standard of balance of probabilities, that the respondent William Tera has satisfied me that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.
45 The magistrate's reasons do not expressly evaluate the relevance of, or the weight to be given to, the evidence of the applicant's mother's ill health and treatment requirements. However, it may be inferred that his Honour, accepting the respondent's submissions, considered that the impact the applicant's extradition might have on his mother did not engage s 34(2) of the Act as a bar to extradition.
46 In respect of the evidence of the impact the applicant's extradition might have on his wife and their family business, it is clear from the reasons that the magistrate considered the evidence to be speculative or otherwise insufficient to satisfy s 34(2) of the Act.
47 Before this Court, the applicant adduced additional evidence concerning the same matters. The applicant's submissions focused primarily on the evidence given by Dr Carmel Hawley, the applicant's mother's treating physician.
48 Dr Hawley gave evidence at the hearing concerning the applicant's mother's treatment requirements and was cross-examined. Dr Hawley's evidence was that the applicant's mother receives peritoneal dialysis (a form of kidney replacement therapy) at the home of the applicant and his wife. Dr Hawley is of the view that the applicant's mother, "requires assistance because she is not able to perform the dialysis at home by herself", but, "does not require two-in-home carers at all times".
49 Dr Hawley deposes that if the applicant's mother were unable to continue receiving the home-based peritoneal dialysis, she would need to transition to the hospital-based haemodialysis, which is not her preferred therapy. Dr Hawley deposes that peritoneal dialysis, in contrast to haemodialysis is the applicant's mother's, "strong treatment preference", avoids additional invasive procedures and has a lower risk of severe anaemia which is important to her as she has a religious objection to receiving blood and blood products.
50 Under cross-examination, Dr Hawley accepted that the applicant's mother initially received haemodialysis and there was no evidence that the treatment was not successful. Dr Hawley accepted that haemodialysis is more effective than peritoneal dialysis and most people are required to transition from peritoneal dialysis to haemodialysis after about two years. Dr Hawley stated that it is, "very hard to keep anyone on peritoneal dialysis for long periods of time, irrespective of their wishes".
51 The applicant's wife, Ms Tera gave evidence by way of affidavit. She was not cross-examined. Ms Tera deposes that before the applicant was taken into custody, she and the applicant would provide "around the clock care" to his mother. She deposes that caring for the applicant's mother is, "like having a full-time job", which she shared with the applicant:
William and I share the workload, as it is a two person job. Each day, Topa has numerous appointments that we take her to.
…
Given that William and I both work on a full-time basis - we usually share the workload of looking after Topa throughout the week.
52 Following the applicant being taken into custody, Ms Tera has received some assistance from various family members in caring for the applicant's mother. She deposes that, "[t]his assistance really is only temporary until William returns home", and, "is not something [that] will be able to continue long term".
53 As to the impact the applicant's extradition might have on his wife and their financial wellbeing, Ms Tera deposes that she and the applicant own Piata Cleaners, a cleaning company of which they are the only employees. She refers to a cleaning contract with Electro Group Training Centre that Piata Cleaners entered in around September 2022, which she says she will likely lose if the applicant were to be extradited:
Without William assisting me in this job, I would not have been able to service this contract and it would be very likely that the client would terminate the contract altogether. If we did not have this contact [sic], we would lose our main source of income. If we were to lose this income, it is likely that we would not be able to make rental repayments on our house.
54 Ms Tera deposes that since the applicant was taken into custody in August 2023, she has subcontracted some of the cleaning work to her sister and is taking home a gross income of "half the amount" she earned when the applicant was working with her.
55 As has been observed, the evidence of any impact that the applicant's extradition might have on his family is only relevant for the purposes of s 34(2)(c) of the Act insofar as the applicant is himself impacted. However, the applicant's evidence largely fails to address how the applicant might be personally impacted. The applicant's counsel accepts that there is "no direct evidence" about any consequences for the applicant himself arising from impacts of his extradition on his mother and wife, but submits that there is "a significant quantity of circumstantial evidence" that can be relied upon.
56 I infer that there will be some impact on the applicant arising from the impacts of his extradition on his mother's health and treatment, including distress arising from being unable to assist her with administering her preferred form of treatment. I do not accept the applicant's submission that his extradition will result in his mother being unable to continue receiving her home-based treatment. Dr Hawley's evidence was that the applicant's mother does not need two in-home carers. Further, it seems highly likely that she will have to transition to haemodialysis at some stage, regardless of whether home care is provided by the applicant.
57 I infer that there will be some impact on the applicant arising from the impacts of his extradition on his wife's and family's wellbeing and finances, including distress arising from being unable to share the workload of caring for his mother and distress and economic loss arising from being unable to assist his wife in servicing the cleaning contract and earning income.
58 I also accept there will be consequences for the applicant's business, and therefore for the applicant, including continued loss of profits resulting from his wife sub-contracting work to her sister that otherwise could have been performed by the applicant. There was no evidence before this Court that Piata Cleaners has in fact lost the contract with Electro Group Training Centre (or any other contracts) since the applicant was committed to prison. However, I accept that there is some risk that it may do so in the future due to the inability of the applicant to work in the business. There was no evidence that the applicant's wife has been unable to pay rent since his incarceration.
59 The gravity of the alleged offences is an important matter to be taken into account. Allegations of sexual offences against children are very serious. Under the Crimes Act 1961 (NZ), the offence of sexual violation by sexual connection carries a maximum penalty of 14 years' imprisonment and the offence of indecency with a girl under 12 carries a maximum penalty of 10 years' imprisonment. There is a significant public interest in having alleged child sex offenders be brought to trial.
60 In my opinion, the evidence adduced by the applicant as to the potential consequences of his extradition does not demonstrate that his extradition would be oppressive or too severe a punishment.
61 The applicant also submits that the consequences of delay by the New Zealand police in investigating and eventually having a warrant issued for his arrest result in his extradition being unjust, oppressive or too severe a punishment. The magistrate identified the periods of delay complained of by the applicant:
It is considered that the periods of those charges range between those dates of 16 October 1987 and 31 July 1988, accordingly, being approximately 35 to 36 years have passed since that offending. Indeed, it was approximately 29 years since the complainant - or since the alleged offending occurred and the complainant made complaint to New Zealand police.
62 In considering the delay, the magistrate referred to New Zealand v Templeton, noting that the focus under s 34(2)(c) of the Act should not be on the consequences of delay and that delay of itself may often be insufficient. His Honour also referred to New Zealand v Johnston, Newman v New Zealand (2012) 206 FCR 1 and New Zealand v Venkataya, noting that if the delay is not due to the conduct of the alleged offender, the consequences of the delay are more significant than its cause.
63 The magistrate summarised the reasons for the delay by police in investigating the complaint:
Importantly, in that affidavit of Mr King, he goes to the investigation timetable and that delay effectively being as a result of changes of investigating officers, attempts to take photographs, make further inquiries and requests sent to other police stations in various parts of New Zealand for interview of witnesses nominated by the victim. It cannot be said that there was any misleading conduct occurring by the police in New Zealand.
64 His Honour noted that there was no allegation that the applicant left New Zealand to avoid facing the charges, and no allegation of misleading conduct by New Zealand police in investigating the complaint.
65 The magistrate noted that the applicant was facing historical sexual assault allegations, the prosecution of which often involves delay. His Honour referred to the passage of Bannister v New Zealand at [35]-[36] (quoted in New Zealand v Johnston), where the Full Court held that:
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 note that in Clear v Holyoak, 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.
…
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.
66 His Honour noted that the Full Court in New Zealand v Johnston:
…agreed with those observations. So they are equally applicable where the alleged victim complained to the authorities more than three decades ago".
67 Before this Court, the respondent adduced additional evidence from Edward King, the New Zealand police constable responsible for the investigation into the allegations against the applicant. Constable King was cross-examined.
68 Constable King's evidence focused on the causes of the delay, which are said to include staffing arrangements, the impact of COVID-19 restrictions and other investigations taking priority. Under cross-examination, Constable King accepted that a seven-year delay was "extraordinary" for an investigation of historical child sex offences. I accept that there was significant and excessive delay in the police investigation after the complainant reported the applicant to the police and that such delay has not been adequately explained.
69 However, in cases involving alleged historical child sex offences, mere delay will not necessarily be an adequate reason for refusing extradition: New Zealand v Johnston at [123]. Where the cause of the delay is not due to the conduct of the alleged offender, the Court's attention should be focused on the consequences of delay and the question of whether the delay has caused any injustice or oppression: see New Zealand v Johnston at [119]. Mere delay without evidence that it has caused injustice or oppression is insufficient to engage s 34(2)(c): New Zealand v Venkataya at 166; New Zealand v Moloney at [77].
70 There was no evidence of actual prejudice to the applicant in respect of the conduct of the potential trial resulting from the delay of the New Zealand police. It should be left to the New Zealand courts to determine any consequences of the delay: New Zealand v Johnston at [123]; Bannister v New Zealand at [36].
71 The applicant submits that the delay in the progression of the police investigation has resulted in the applicant making significant changes to his life, including agreeing to provide in-home care to his mother and entering a contract for cleaning services in 2022, which then became the main source of income for him and his wife. The applicant submits that his extradition will deprive him of the benefit of having his mother receive her preferred treatment and the income from the cleaning contract.
72 I do not accept that the delay in the police investigation has resulted in oppression or hardship to the applicant. If an extradition warrant had been issued earlier, the applicant's mother may not have been able to enter in-home care at the applicant's home, and the applicant may not have been able to start a cleaning business and enter the cleaning contract with Electro Group Training Centre. In that sense, it seems likely that the delay has been to the benefit of the applicant. I am not satisfied that the delay of the New Zealand police has caused the applicant prejudice in respect of his personal, business and financial affairs.
73 Further, the gravity of the alleged offences and a significant public interest in having alleged child sex offenders be brought to trial must be taken into account.
74 In these circumstances, I am not satisfied that because of the lengthy period that has elapsed since the offences were allegedly committed or the delay of the New Zealand police, it would be unjust or oppressive to surrender the applicant to the respondent.
75 Whether the factors relied upon and the evidence adduced by the applicant are considered cumulatively or individually, I am not satisfied that his surrender would be unjust or oppressive or too severe a punishment.