Extradition documents were drafted by Australian authorities in May 2015, and a warrant for the man’s arrest issued in June, that year. However, it was almost another four years until the relevant authority in Australia signed off the extradition request, proffering various excuses for the delay.
New Zealand authorities finally received the request in February, 2022 – seven years after the man had left Australia.
He was arrested by the New Zealand police in October last year and granted bail.
The Crown’s application to surrender him to Australia was heard by the district court in March, this year.
The man’s lawyer Michael Lynch didn’t dispute his client was eligible for surrender but said it would be “unjust” or “oppressive” to do so.
There’d been too long a delay since the alleged offence, during which the man’s personal circumstances had changed significantly, Mr Lynch said.
His client was still relatively young when he returned to New Zealand to be closer to whānau and to get a foothold in a career in forestry. He was now well settled and had recently become a father. To surrender him now would be unjust.
His client wasn’t aware of the allegation when he left Australia. If he had been, he wouldn’t have risked going in and out of that country several times in the past eight years. And, he wouldn’t have chosen to start a family here if he thought there was a risk of him facing extradition.
To surrender the man would also breach his fair trial rights in Australia, Mr Lynch said. Too much time had elapsed since the alleged offence — recollections would have faded and evidence would be unreliable. Because the man had been out of the country, his chances of getting bail in Australia were slim and, in any event, he had no contacts there to stay with.
However, Judge Warren Cathcart ruled a surrender order was justified.
There was definitely force in the argument about the delay and he did not accept the Commonwealth’s contention that the delays had been “adequately answered”. However, it was not enough to sway the decision against extradition, the judge said.
In his view, none of the factors relied on in the opposition argument, individually or collectively, met the requirements of indicative principles set out in the legislation for the extradition to be “unjust” and the case fell “well short” of being “oppressive”.
The Australian Court could be trusted to decide if a trial would be unfair due to the delay.
High Court Justice Rebecca Ellis took a different view, finding Judge Cathcart erred in his analysis about the “oppressiveness” of the situation and “missed or minimised” important matters unique to this case.
Surrendering the man now would not be in the best interests of his infant son, Justice Ellis said. While that wasn’t determinative in itself, she could see a necessary “hook” between the circumstances of the man’s son and the delay by the Australian authorities. Judge Cathcart had rejected the existence of that “hook”.
Justice Ellis accepted the man’s partner’s evidence that the couple wouldn’t have started a family if they knew he might be removed from New Zealand.
The man had “plainly grown up” in the eight years since he left Perth and was “not the same person he was in 2014”. He now had stable employment and his established family would be “materially disrupted, if not destroyed, by extradition”, Justice Ellis said.
That level of oppression wouldn’t be remedied by a “stay” hearing (to have the proceedings abandoned) in Australia.
Justice Ellis declined Mr Lynch’s request to have the case referred to the Minister of Justice to decide. Given her decision, if the ruling had not gone in the man’s favour, the Minister would have had a broader discretion to decline surrender, being able to take into account things Justice Ellis could not.
