consideration
33 It is convenient to begin this section by further considering Kenneally. I do not accept that it sanctions a court determining contentious questions of admissibility of evidence in proceedings under s 34(1)(c) of the Act. It will be recalled that in Kenneally the Full Court agreed with the primary judge that it would have been inappropriate for a court conducting a review to determine disputed issues of fact. The same reasoning applies to disputed questions of admissibility of evidence.
34 The paragraph from Kenneally on which the applicant relies and which is extracted at [30] of these reasons does not contradict that position. That paragraph follows the Court's conclusion that there was no evidence at all against the appellant. The Court explained that where there is no evidence against an appellant, then for that reason, there is no prima facie case against the appellant. Not only, said the Court, was there no prima facie evidence against the appellant, but the case would not be permitted to go to a jury, and any verdict would be set aside on appeal as unsatisfactory or unsafe. The references to Doney and Morris were a fortiori arguments in relation to a no evidence case. The critical factor is that the discussion concerned a case in which the Court had already found that there was no evidence against the appellant. There is no warrant for reading this passage as authorising a court to determine disputed questions of fact or law in the course of determining whether it would be unjust to surrender a person under s 34(2). Such a conclusion would fly in the face of the express terms of the judgment.
35 Ms Gordon SC, who with Ms Orr appeared as counsel for the first respondent, submitted that the closest guidance for the present case was to be found in Bates v McDonald (1985) 2 NSWLR 89 (Bates). This was an appeal to the NSW Court of Appeal from a judgment of Slattery CJ at CL reviewing a decision of a magistrate to surrender the appellant to New Zealand to answer drugs charges. The question was whether the appellant had demonstrated that it was not in the interests of justice to surrender him to New Zealand under s 27 of the Extradition (Commonwealth Countries) Act 1966 (Cth), which was the forerunner of s 34 of the Act. The appellant sought to tender depositions from committal proceedings in New Zealand, and from the trial in New Zealand of the appellant and his two co-accused (which had taken place in the appellant's absence). The respondent objected to the reception of that evidence. The Court of Appeal however examined the depositions. Kirby P said at 95:
But the scope and purpose of its examination is very limited indeed. It is determined by the language and object of s 27 of the Act. Relevantly, it is to decide whether the accusation against the appellant is 'wholly misconceived' or 'cannot possibly be right' or whether it is 'demonstrably clear that the proceedings could' have no foundation at all: see Hope JA in Willoughby v Eland ([(1985) 59 ALR 147] at 152). However, it is erroneous to suggest that the depositions and other evidence may be examined by the court with a view to evaluating disputed issues of fact or to determining doubtful questions of law …
36 His Honour concluded at 96:
I see nothing in the depositions or in the other evidence before the Court to establish that the accusation against the appellant has not been made in good faith or in the interests of justice. By so saying I am not to be taken as indicating that I have formed a view about the guilt of the appellant. The evidence against the appellant on the remaining charge in the indictment concerning him would not appear to be strong at all. However, whether there is sufficient evidence to go to the jury and whether the appellant will be convicted on such evidence are matters to be determined by due process of the law in the New Zealand courts and not by me.
37 Samuels JA said at 100:
… in my view, it is not open to establish that an accusation has not been made in the interests of justice by showing only that its proof involves a doubtful or debatable question of law or fact which the magistrate ought to decide in the offender's favour. Rather it is necessary that the offender should establish that it is demonstrably clear that the accusation was totally misconceived or wholly lacking in any foundation.
38 Finally, McHugh JA said at 102:
In my opinion when a person against whom a warrant has been issued under the Extradition (Commonwealth Countries) Act 1966 (Cth), s 24, can show that not only is there no evidence to support the charge against him but that the charge is not even open to argument, he establishes that it would not be in the interest of justice to return him to New Zealand.
In this respect the test is similar to that applying in civil cases where a party seeks to strike out a claim on a ground that it is an abuse of the process of the court: see, for example, General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125. This test places a heavy burden on a person seeking to rely on s 27.
In cases where no evidence has yet been given against him, or where the whole of the evidence against him has not been tendered, his task of establishing that the accusation was not brought in the interests of justice will be almost impossible.
39 Just as the Court in Bates looked at the depositions for a limited purpose, this Court should consider the admissibility of the photographic identification evidence, albeit for a limited purpose. That purpose is to determine whether the trial judge could hold that the photograph identification evidence is admissible. The photographic identification is prima facie admissible, but the trial judge has a discretion to exclude it if the prejudice to the applicant outweighs its probative value. Unless this Court concludes that the trial judge would be bound to exercise the discretion to exclude the evidence, the appropriate inquiry at this stage is to assess whether there is a prima facie case against the applicant, including by reference to that evidence. In other words, if the legal basis for admissibility is arguable, the evidence is to be taken into account to determine whether there is a prima facie case against the applicant.
40 This approach applies to a contested issue of law the same approach as has been applied to cases of contested issues of fact. In Kenneally, the Court said that the evidence is to be 'taken at its highest for the prosecution' in order to test whether a prima facie case has been made out. In Thorp v Abbotto (1992) 34 FCR 366 at 372, the same approach was illustrated by Lockhart J:
… a magistrate conducting a committal, having heard the evidence for the prosecution and for the defence, and having formed the opinion that there are two hypotheses open on the material before him, one consistent with guilt and the other with innocence, is not necessarily bound to discharge the defendant.
(See also Coco v Shaw [1994] 1 Qd R 469, especially at 499-500 per Dowsett J.) Further, this view is consistent with a purpose of the Act, namely, that the prosecution of the accused should be determined where it was instituted: O'Donnell v Heslop [1910] VLR 162 at 170 per Madden CJ, cited in Kenneally at [51].
41 Applying this approach, in my view, a judge conducting a trial of the applicant in New Zealand would not be bound to exercise the discretion to exclude the photographic identification evidence of Dixon, Bunter and Sutton in favour of the applicant if the judge were required to apply a principle such as that enunciated for Australian law in Alexander. Whilst some of the criticisms made by the applicant of the construction and use of the photoboard have some substance, they are not such as to compel the conclusion that the evidence would necessarily be excluded by the trial judge.
42 For instance, as to the construction of the photoboard, it would be open to a judge to conclude that the visual impact of the photoboard does not draw attention solely to the applicant in the same fashion as the construction of the photoboard drew attention to the accused persons in Blick or Knight.
43 Further, the identification evidence does not come from one witness alone. Although the evidence of identification from Bunter and Sutton was not evidence of positive identification, it does have some probative value: Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at [10] and [13]. When taken together with the positive identification evidence of Dixon, the risk of unreliability arising from identification from a single source is reduced.
44 In relation to the use of the photoboard, it was contended that there was no evidence of the instructions given to the witnesses, and there was no evidence from the observing officers of their reaction to the images on the photoboard. However, the absence of such evidence does not give rise to a necessary inference that the investigating officers used an unfair procedure.
45 The fact that the photoboard was shown to the witnesses by the investigating officers rather then independent officers of rank, even if an undesirable practice, does not compel the conclusion that the process was unfair to the applicant.
46 The fact that the applicant was not present when the photoboard was shown to the witnesses is a common feature of the use of photoboards, and has led to the view that identification parades are regarded as preferable means of identification. But again, the absence of the applicant does not give rise to a necessary inference that the process was unfair. If that were so, no case would have permitted the use of photographic identification evidence in the absence of the applicant. On the contrary, Alexander is an example in which such evidence was admitted in such circumstances.
47 The use by all three witnesses of the formula 'similar looking females' to describe the images on the photoboard does not render their identification evidence so obviously unreliable that the trial judge would be bound to exclude the whole of their statements. The description may be regarded as having little negative impact on their evidence because the description relates to the photoboard, which is produced as part of the witness statement. The reader is given the chance to see what the witness was describing. The use of identical terminology by all three witnesses may prove a fertile field for cross-examination by the applicant regarding the process used by the investigating officers. But that is a matter for trial, not for the present task of assessing whether the evidence makes a prima facie case against the applicant.
48 Further, the evidence that the applicant was in Auckland at the time when the hotel reservations were made, and that the telephone calls were made from locations with which the woman purchasing the airline tickets would have been familiar, could be used by a judge considering the admissibility of the photographic identification evidence as supportive of a view that the evidence is sufficiently reliable and that its use against the applicant would not be unfair.
49 Finally, I do not accept the applicant's submission that even if there is a prima facie case that she purchased the airline tickets, there is no evidence of a common intention shared by her to import the drugs. Once it is established that she purchased the tickets, and that the tickets were used by the named passengers for the purpose of importing the drugs, it is open to a jury to draw an inference that she was party to the overall criminal enterprise.