‘Unjust’ claim in court hearing on extradition

A109 Light Utility Helicopter flight with mayor Gisborne City from the air in November 2023.

A judge is considering whether a Gisborne man accused of committing a serious assault in Australia nine years ago should be sent back there to face criminal proceedings.
After an extradition hearing in Gisborne District Court last week, Judge Warren Cathcart reserved his decision but signalled it was likely to be released on or before April 4. 
The accused’s name will be suppressed until then, and the issue of whether it should be permanently suppressed revisited that day. 
The 32-year-old man faces charges for allegedly causing grievous bodily harm to someone in Perth in 2014. 
During last week’s hearing, counsel Michael Lynch pointed to the delay since the alleged offending as the key reason the judge should refuse the Commonwealth of Australia’s request to have the man returned. 
Under the the Extradition Act a judge had discretion to refuse to surrender a defendant if the amount of time that had passed since the alleged offence meant it would be unjust or oppressive to do so.
Such was the case here, Mr Lynch said.  
While delay since 2020 could be excused by the Covid-19 pandemic, there were about five years before then when nothing had been done by the Commonwealth, Mr Lynch said.
His client had come back to New Zealand when he was still relatively young, 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. 
Australian police claimed his client had hurriedly returned to New Zealand soon after the alleged offence, but that was not so, Mr Lynch said. 
His client was not aware of any allegation when he left Australia. If he had been, he would not have risked returning to Australia for work at one point, travelling interstate there, or taking a return trip to Vietnam from Australia. And, he would not have chosen to start a family here if he thought there was a risk he might face extradition. 
To surrender his client would also breach his fair trial rights in Australia. Too much time had elapsed since the alleged offence — recollections would have faded and evidence would be unreliable. 
It was also unlikely any Australian court would grant his client bail given the time he had been out of the country and the fact he had opposed extradition. And, the man had no contacts in Australia to call on for a bail address. 
Mr Lynch further contended that if the judge ruled in favour of extradition, the case should be referred to the Minister of Justice for an ultimate determination — as per another provision in the Act.
For the Commonwealth, lawyer Cameron Stuart conceded there had been considerable delay in the request for extradition but argued it didn’t amount to being “unjust” or oppressive.
It wasn’t reason enough to justify a refusal of the extradition.
How the man was able to return to Australia without coming to the attention of authorities at the border was unknown, Mr Stuart said. There had been a border alert at one time but for an inexplicable reason it wasn’t in place when the man went back.
Mr Stuart rejected the contention that extradition would unjustly impact on the man’s fair trial rights due to the passage of time.  He said criminal proceedings always involved allegations that were historical in nature of charges. The delay here was not a bar to pursuing the charges and the effect of the passing of time wouldn’t be unjust. 
Furthermore, the decision as to whether the criminal case against the man proceeded should be a decision for the Australian courts — not part of this court’s decision on extradition. 
Whether he was bailed or remanded in custody couldn’t be a decisive factor either. It was possible he would be remanded into custody but that wouldn’t be arbitrary. It would be  based on the same process we have in New Zealand. The system of comity required us to trust in that process. 
In response to the personal factors raised by Mr Lynch, Mr Stuart said hardship caused would be no more in this case than in any extradition. His young family would benefit from the support of the same people Mr Lynch argued would be impacted by his client’s departure. 
With regards to Mr Lynch’s contention that the case should be referred to the Minister, Mr Stuart said it was unnecessary. That process wasn’t intended as a “safety net”or a “second bite of the cherry”. There needed to be something unusual or compelling that would justify referral when extradition would otherwise be appropriate.
If the court found the man should be surrendered, there was nothing above and beyond the circumstances discussed at this hearing that would lead to a different consideration by the Minister, Mr Stuart said.