Extradition to Australia refused: long prosecutorial delay made surrender oppressive
Introduction
[1] [OMISSIS] is accused of assaulting a man in Perth, Australia in 2014, causing grievous bodily harm. The Commonwealth of Australia has requested [OMISSIS]’s extradition to face criminal charges related to the alleged assault.
[2] On 4 April 2023, the District Court held that [OMISSIS] is eligible for surrender and issued a surrender order under s 47 of the Extradition Act 1999. [n. 1. Commonwealth of Australia v [OMISSIS] [2023] NZDC 5941 (Judge Cathcart) [DC judgment].] The surrender order was quashed by the High Court on 19 June 2023. [n. 2. The High Court issued a results judgment on 19 June 2023: [OMISSIS] v The Commonwealth of Australia [2023] NZHC 1525 (Ellis J). The reasons were issued on 23 June 2023: [OMISSIS] v Commonwealth of Australia [2023] NZHC 1587 (Ellis J) [HC reasons judgment].] The High Court considered “that the effluxion of time would, in the combined circumstances of [OMISSIS]’s case, make it oppressive to surrender him”. [n. 3. HC reasons judgment, above n 2, at [45]; and see Extradition Act 1999, s 8(1)(c).] On 12 February 2025, the Court of Appeal overturned the High Court decision and referred the case to the Minister of Justice (the Minister) under s 48 of the Extradition Act. [n. 4. Commonwealth of Australia v [OMISSIS] [2025] NZCA 8 (French P, Collins and Hinton JJ) [CA judgment]. Leave to appeal had earlier been granted by the Court of Appeal: The Commonwealth of Australia v [OMISSIS] [2024] NZCA 25; and see s 69(2) of the Extradition Act, which provides that sub-pt 8 of pt 6 of the Criminal Procedure Act 2011 (appeals on questions of law) applies as far as applicable with any necessary modifications to every appeal under pt 8 of the Extradition Act.]
[3] Leave to appeal to this Court was granted on 16 June 2025. The approved question was whether the Court of Appeal was correct to allow the appeal and find that the High Court erred in law when it concluded it would be oppressive to extradite [OMISSIS] to Australia. [n. 5. [OMISSIS] (SC 22/2025) v Commonwealth of Australia [2025] NZSC 66 (Ellen France, Williams and Miller JJ).]
Legislation
[4] Part 4 of the Extradition Act provides for a simplified extradition process from New Zealand to Australia and any other designated country. [n. 6. Section 39.] Section 45(1) requires the court to determine whether a person to whom this simplified process applies is eligible for surrender. [OMISSIS] accepts that, in his case, all relevant procedural steps have been taken and he is eligible for surrender under s 45, subject to s 45(4). [n. 7. See CA judgment, above n 4, at [10]–[13].] Section 45(4) provides:
45 Determination of eligibility for surrender
…
(4) The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8.
[5] [OMISSIS] relies on s 8(1)(c) of the Act. Section 8(1) provides:
8 Discretionary restrictions on surrender
(1) A discretionary restriction on surrender exists if, because of—
(a) the trivial nature of the case; or
(b) if the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(c) the amount of time that has passed since the offence is alleged to have been committed or was committed,—
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
[6] If the court determines that a person is eligible for surrender under s 45, then s 47(1) is engaged. Under s 47(1), the court must, immediately after issuing a warrant for the person’s detention, make an order surrendering the person, provided the case is not referred to the Minister for his or her consideration under s 48(1) or (4) (as the Court of Appeal did in this case).
[7] Appeals against determinations in respect of eligibility for surrender under s 24 or s 45 of the Extradition Act are confined to questions of law. [n. 8. Extradition Act, ss 69 and 72. An error of law may arise where the decision-maker misapplied the legal test, failed to consider relevant matters (including those not listed in the statute) or considered irrelevant matters, or where the ultimate conclusion on the facts was so clearly untenable as to amount to an error of law: Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27].] Section 72(2)(a) provides that, when considering such an appeal, the High Court cannot have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed from. The parties accept that the same restriction applies before the Court of Appeal and this Court. Section 72(1) provides that the High Court must hear and determine the question or questions of law placed before it and must exercise one or more of its powers. These include the powers to reverse, confirm or amend the determination appealed from, to remit the determination to the District Court and to make any other order it thinks fit. [n. 9. Section 72(1).]
[8] We also note that, when considering an application under pt 4 to surrender a person, the court is not entitled to receive “evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which surrender is sought”. [n. 10. Section 45(5)(a).] Nor can the person to whom the proceedings relate adduce such evidence. [n. 11. Section 45(5)(a).]
The alleged offending
[9] The alleged offending occurred in the car park of a fast food restaurant in Perth on 8 November 2014. The allegations are as follows. The victim was sitting in a car on the passenger side with the window down. In an unprovoked attack, the offender ran up to the victim, jumped in the air and kicked the victim once in the head through the open car window. The victim got out of the car and approached the offender, who punched him once on the head, causing the victim to fall to the ground unconscious. The offender then kicked the victim once on the head and twice on the shoulder.
[10] The victim suffered significant injuries, including a comminuted right scapula fracture and intra-articular extension and a comminuted impacted fracture of the right distal clavicle. The victim also sustained a haematoma to his right fronto-temporal scalp and a contusion to his left hand. Without surgery, these injuries would have been likely to cause permanent damage.
[11] The assault was reported to the police on 24 November 2014. In February 2015, the Western Australia Police identified [OMISSIS] as the person responsible for the attack.
[12] [OMISSIS] had returned to New Zealand in February 2015. The District Court proceeded on the basis that [OMISSIS] did not know he was a suspect in the assault when he left Australia. [n. 12. DC judgment, above n 1, at [38].]
Delays
[13] On 17 June 2015, the issuing of an arrest warrant for [OMISSIS] was approved by a Magistrate at the Rockingham Magistrates Court in Western Australia. The charge alleged [OMISSIS] had caused grievous bodily harm with intent to cause grievous bodily harm. [n. 13. The Criminal Code (WA), s 294. In Western Australia, this offence carries a maximum penalty of 20 years’ imprisonment. The equivalent offence in New Zealand is s 188 of the Crimes Act 1961, which carries a maximum penalty of 14 years’ imprisonment.]
[14] On 25 June 2015, a report to the Office of the Director of Public Prosecutions for Western Australia (ODPPWA) was submitted by an Investigating Officer for review and approval by the Mandurah District Office.
[15] It was not until 13 June 2016 that Superintendent Russell of the Mandurah District Office approved the report and it was submitted to the ODPPWA. There was no explanation for the delay of a year. The Officer in Charge of the Rockingham Detectives assumed that there had been an oversight by the Western Australia Police.
[16] The Director of Public Prosecutions for Western Australia approved the request to seek an extradition order on 27 February 2020. An extension of that approval was granted on 9 April 2021.
[17] In response to a query from the Western Australia Police as to the delay, the ODPPWA explained that the delay between the receipt of the request in June 2016 and the initial approval in February 2020 was attributable to a combination of factors, including workload pressures of the prosecutor assigned to the matter. [n. 14. Further information had been sought by the Office of the Director of Public Prosecutions for Western Australia from the Western Australia Police in June 2016, but this request had been attended to in a timely manner.] The ODPPWA advised that the request was reallocated to another prosecutor in January 2020, but the extradition process could not be progressed between February 2020 and February 2021 because of border closures due to the COVID-19 pandemic.
[18] On 10 June 2021, the request for extradition was signed by a Magistrate in Western Australia. Inquiries were made as to [OMISSIS]’s whereabouts and the warrant was endorsed by a New Zealand District Court Judge on 23 September 2022. [OMISSIS] was arrested in October 2022 and made aware for the first time that he was a suspect in the 2014 assault.
[19] The District Court found that the Australian authorities had been “inexcusably dilatory”. [n. 15. DC judgment, above n 1, at [36] citing Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (HL) at 785 per Lord Edmund-Davies.] The Commonwealth did not seek to challenge that assessment before us.
[20] [OMISSIS] deposed that he had some recollection of an incident that occurred while he was living in Perth but, given the passage of time, he could only remember “bits and pieces”. He said that there were a lot of people around at the time. Most were strangers but he did know three of them: two were back in Gisborne but he did not know the whereabouts of the third. We note too that the memory of material witnesses is in any event likely to have been adversely affected by the passage of time since the incident. [OMISSIS] said he was concerned that his ability to obtain any CCTV evidence from neighbouring businesses will have been compromised (to the extent this footage has not been accessed and retained by the police).
[OMISSIS]’s circumstances [n. 16. This information is sourced from affidavits filed before the District Court by [OMISSIS], his partner and his mother. The Commonwealth of Australia did not seek to challenge any of this background. Section 72(2)(a) of the Extradition Act means that this Court has no updating evidence but we were assured from the Bar that there were no changes of circumstances that [OMISSIS]’s counsel considered that they, as officers of the Court, would be required to share with us.]
[21] [OMISSIS] is of Rongowhakaata descent. He comes from a settlement near Gisborne and in his early 20s moved to Australia for work. He first moved to Sydney in around 2012 but only stayed for around six months. In around 2014, he decided to give Australia another try, this time moving to Perth. While there and in early 2015 [OMISSIS] had serious issues with his mental health. In late February 2015, [OMISSIS] returned to his tūrangawaewae to be closer to whānau support.
[22] [OMISSIS] decided to move back to Australia in 2018. This time he went to Sydney, where his cousin and brother were living. He stayed for around a year, doing casual work on homes, cars and pools. During this period, he took an overseas trip to Vietnam and visited New Zealand as well, but on these occasions he always returned to Australia.
[23] [OMISSIS] left Australia in early 2020 and moved back to live and work in his home settlement near Gisborne. At no stage during his travels was [OMISSIS] informed of a warrant for his arrest. [OMISSIS] can only recall being stopped once at the border in Australia and being questioned about something to do with fines.
[24] Since returning to New Zealand in 2020, [OMISSIS] has worked across a number of industries in his community, including scaffolding and forestry work. He said in his affidavit that since he has returned to Gisborne he has got his “life back on track”. Part of that is giving up drinking alcohol. He takes part in activities that he says “help me with my wairua”, including hunting, fishing, and playing rugby and touch rugby.
[25] [OMISSIS] also reconnected with his iwi and has become an integral part of his community. He delivered firewood to kaumātua and food parcels to people in need during the COVID-19 pandemic. He volunteers at the local marae, including monthly lawn and grounds maintenance work among other duties. He is also a major support person, emotionally and financially, for his mother, who we understand is a widow.
[26] In July 2021, [OMISSIS] entered into a relationship with his current partner. The couple soon began planning a future together, including starting a family and applying for iwi assistance to purchase a house together. In December 2022, two months after [OMISSIS] was arrested, their son was born. [OMISSIS]’s partner deposed that she relies on [OMISSIS] for emotional, physical and financial support. [n. 17. At the time of the District Court hearing [OMISSIS]’s partner was on maternity leave: DC judgment, above n 1, at [46].] She said that, if they had known that [OMISSIS] was going to be extradited, they would not have planned to have a baby. [OMISSIS]’s mother deposed that [OMISSIS]’s extradition would cause “a huge emotional toll on [[OMISSIS]’s partner] and his [then] soon-to-be-born son” and have a “huge impact” on the whānau unit generally.
District Court judgment
[27] Judge Cathcart in the District Court did not consider that the inexcusable delay meant that it would be unjust to surrender [OMISSIS]. The Judge recognised that the significant delay would make [OMISSIS]’s capacity to mount an effective defence difficult. He considered, however, that it could not be argued that a fair trial was impossible because of a lack of procedural safeguards. The Judge said that the trial court could be trusted to grant a stay of prosecution, should a trial be unfair because of delay. He also said that the Court should not “second-guess the trial judge’s possible obligations to deal with the claimed prejudice from delay by way of jury instructions or self-reminder”. [n. 18. At [52].]
[28] The Judge also rejected the submission that the extradition would be oppressive. He said that as a “matter of comity” he was “wary of reviewing the actions of the Australian authorities leading up to the request here”. [n. 19. At [56].] He did not consider it a “borderline case where the element of prosecutorial delay might tip the balance in favour of [[OMISSIS]]”. [n. 20. At [56].]
[29] Counsel for [OMISSIS] had placed emphasis on Curtis v Commonwealth of Australia, in which the appellant, Mr Curtis, had successfully relied on s 8(1)(c) of the Extradition Act. [n. 21. At [57]–[59] citing Curtis v Commonwealth of Australia [2018] NZCA 603, [2019] 2 NZLR 621.] The Judge considered that there were material differences between [OMISSIS]’s situation and that of Mr Curtis. In particular, the delay in Mr Curtis’ case had deprived him of an opportunity to be dealt with as a 14- or 15-year-old youth. This did not apply to [OMISSIS]. [n. 22. DC judgment, above n 1, at [59].]
[30] The Judge recognised that, given [OMISSIS]’s personal circumstances, extradition would bring real hardship for him. Removing him from his cultural connections would also cause real hardship to [OMISSIS] and his whānau. The Judge said: “But even taken collectively the circumstances relied upon do not reach the acute level of oppression. Nor is this a borderline case”. [n. 23. At [60].]
[31] The Judge did not consider a referral to the Minister under s 48 was warranted. [n. 24. At [68]–[69].] He therefore issued a surrender order under s 47 of the Extradition Act.
High Court judgment
[32] Ellis J in the High Court considered that the District Court Judge erred in his analysis of oppression. [n. 25. HC reasons judgment, above n 2, at [29].] The Judge considered Curtis to be a useful example but said that there was a danger in using it as a benchmark as that approach made it too easy to miss or minimise factors that were unique to [OMISSIS]’s case. [n. 26. At [31].]
[33] First, she noted that [OMISSIS]’s position was in fact “better” than that of Mr Curtis because Mr Curtis was aware that he was wanted by the Australian authorities and [OMISSIS] was not. The delay in [OMISSIS]’s case was also two years longer than the delay in Curtis. [n. 27. At [32].]
[34] The Judge then said that the interests of [OMISSIS]’s child and his family, while mentioned in the narrative of his circumstances, did not feature in the District Court’s analysis of oppressiveness. [n. 28. At [35].] It was indisputable that [OMISSIS]’s surrender would not be in the best interests of his infant son. [n. 29. At [36].] The Judge also considered there was a powerful link between [OMISSIS]’s son and the delay as there was no reason to doubt the evidence of [OMISSIS]’s partner that they would not have chosen to have a child had they known [OMISSIS] might be removed from New Zealand for an uncertain period. [n. 30. At [37].] In addition, as a result of the child’s birth, [OMISSIS]’s partner and child were financially dependent on him. Removing [OMISSIS] from New Zealand would deprive him of the opportunity to support his family, building on the oppression. [n. 31. At [38].]
[35] In terms of similarities with Curtis, the Judge acknowledged that [OMISSIS] would not have been tried as a youth had he been arrested in 2014 or 2015 but noted that, as a man in his early 20s, he was still a young person. [n. 32. At [41].] Courts in New Zealand recognise that many men in their early 20s have not yet “grown up”. [n. 33. At [42].] She said: [n. 34. At [42].]
[OMISSIS] has, in my view, very plainly “grown up” in the eight years since his departure from Perth; he is not the same person he was in November 2014. His growth during that period—manifested in his stable employment and his established family—would be materially disrupted, if not destroyed, by extradition. And as the Judge noted in relation to Mr Curtis “this level of oppression would not be remedied if there were a stay hearing in Australia”.
[36] The Judge did not consider it necessary to refer the case to the Minister in light of her “clear view that the effluxion of time would, in the combined circumstances of [OMISSIS]’s case, make it oppressive to surrender him”. [n. 35. At [45].] She therefore allowed the appeal and quashed the surrender order.
Court of Appeal judgment
[37] The Court of Appeal set out a number of principles it said assisted in applying s 8(1)(c) of the Extradition Act.
[38] First, it said that the procedure in pt 4 of the Act is “‘underpinned by the presumption of legal and procedural similarity’, of comity between New Zealand and Australia”, citing the dissenting reasons of Ellen France and McGrath JJ in this Court’s decision in Radhi v District Court at Manukau (Radhi (SC)). [n. 36. CA judgment, above n 4, at [23] citing Radhi v District Court at Manukau [2017] NZSC 198, [2018] 1 NZLR 480 [Radhi (SC)] at [83] per Ellen France and McGrath JJ dissenting, in turn citing Rynae Butler “Imbalance in Extradition: The Backing of Warrants Procedure with Australia under Part 4 of the Extradition Act 1999” [2017] NZCLR 63 at 64–65. The Court also referred to Te Aka Matua o te Ture | Law Commission Modernising New Zealand’s Extradition and Mutual Assistance Laws (NZLC R137, 2016) at [7.18]: CA judgment, above n 4, at [23].]
[39] Second, the Court relied on Taipeti v R and Union of India v Narang for the proposition that, despite the heading of s 8 referring to “[d]iscretionary restrictions on surrender”, the decision involves an evaluative judgment, not the exercise of judicial discretion. [n. 37. CA judgment, above n 4, at [24] citing Taipeti v R [2017] NZCA 547, [2018] 3 NZLR 308 at [54] and Union of India v Narang [1978] AC 247 (HL) at 272–273 per Viscount Dilhorne, 281 per Lord Morris, 283 per Lord Edmund-Davies, 287–288 per Lord Fraser and 293 per Lord Keith.] The Court said that “[a]ppeals from decisions concerning s 8 are therefore treated as general appeals.” [n. 38. CA judgment, above n 4, at [24].]
[40] Third, it said that “unjust” in s 8(1)(c) refers to the risks of prejudice to a fair trial, whereas “oppressive” refers to hardship arising from changes in circumstances from the time of the alleged offending to the time the extradition application is heard. It said the concepts overlap and there may be factors relevant to the application of both. [n. 39. At [25] citing Kakis, above n 15, at 782–783 per Lord Diplock and Commonwealth of Australia v Mercer [2016] NZCA 503 at [43(e)] and [51].]
[41] Fourth, the threshold to show oppression is high [n. 40. CA judgment, above n 4, at [26] citing Mercer, above n 39, at [52], in turn citing Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979 at [26] per Simon Brown LJ, with whom Royce J agreed.] and “[t]he onus is on the person resisting extradition to establish either unjustness or oppression on the balance of probabilities”. [n. 41. CA judgment, above n 4, at [26] citing Mercer, above n 39, at [29], in turn citing Wolf v Federal Republic of Germany [2001] NZAR 536 (HC) at [66] and New Zealand v Moloney [2006] FCAFC 143, (2006) 235 ALR 658 at [31].] In borderline cases, prosecutorial delay may tip the balance in favour of a finding of oppression but this should not be over-emphasised. [n. 42. CA judgment, above n 4, at [27] citing Mercer, above n 39, at [53].] This is because the requesting state will usually be in a better position to grant an appropriate remedy for any delay. [n. 43. CA judgment, above n 4, at [27] citing Republic of Argentina v Mellino [1987] 1 SCR 536 at 554–555 per Dickson CJ, Beetz, McIntyre, Le Dain and La Forest JJ and Mercer, above n 39, at [53].]
[42] Fifth, the disruption of families is a natural consequence of extradition. By itself it is not likely to constitute oppression but “the interests of a child whose life will be severely impacted through the extradition of their parent” can be a relevant consideration in deciding on oppression. [n. 44. CA judgment, above n 4, at [28] citing Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [29]. See also Radhi v District Court at Manukau [2017] NZCA 157, [2017] NZAR 157 [Radhi (CA)] at [44] and [38] referring to Mailley v District Court at North Shore [2016] NZCA 83 [Mailley (2016)] at [50]. On appeal, the majority of the Supreme Court affirmed this principle, but allowed the appeal on another ground: Radhi (SC), above n 36, at [38] per William Young J, with whom Glazebrook and O’Regan JJ agreed: at [62]–[63].]
[43] In its analysis of [OMISSIS]’s appeal, the Court said that the “principle of comity weighs heavily in favour of allowing the appeal”. [n. 45. CA judgment, above n 4, at [53].] It said that there were two relevant aspects of comity in this case. The first was “the trust and confidence that the Australian criminal justice system will treat [OMISSIS] in the same way he would be treated had the alleged offending occurred in New Zealand”. [n. 46. At [54].] This included the appropriateness of allowing Australia’s courts to assess the impact of delay. [n. 47. At [54].] The second aspect of comity was the particularly close and trusting relationship between New Zealand and Australia. [n. 48. At [55] citing Radhi (SC), above n 36, at [83] per Ellen France and McGrath JJ dissenting, in turn citing Te Aka Matua o te Ture | Law Commission, above n 36, at [7.18].]
[44] The Court considered that the seriousness of the offending also weighed in favour of allowing the appeal. [n. 49. At [56] citing Pearson v Commonwealth of Australia [2024] NZCA 447 at [109]–[110]; Curtis, above n 21, at [110], in turn citing R (on the application of Cepkauskas) v District Court at Marijampole Lithuania [2011] EWHC 757 (Admin) at [31]; and H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 at [5] per Lady Hale SCJ.] The Court considered there to be four counterbalancing factors: [n. 50. CA judgment, above n 4, at [57].]
(a) The extraordinary four-year delay of the ODPPWA. [n. 51. At [58].]
(b) The fact there is no evidence [OMISSIS] sought to evade the Australian authorities. [n. 52. At [59].]
(c) That [OMISSIS] and his partner have made significant changes to their lives on the assumption they would be able to continue living together, the most significant being the birth of their child. [n. 53. At [60].] The Court said that the ratification by New Zealand of the United Nations Convention on the Rights of the Child (UNCROC) meant it is “axiomatic” that the best interests of the child are relevant in this context. [n. 54. At [61] citing United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) [UNCROC]. New Zealand ratified UNCROC on 6 April 1993. It entered into force for New Zealand on 6 May 1993 in accordance with art 49(2).] Separating a parent from their child for what could be a significant period “is a factor to be carefully balanced against the public interest in extradition”. [n. 55. CA judgment, above n 4, at [62] citing Clive Nicholls and others Nicholls, Montgomery and Knowles on the Law of Extradition and Mutual Assistance (3rd ed, Oxford University Press, Oxford, 2013) at [7.77] and H(H), above n 49, at [8] per Lady Hale SCJ.]
(d) It was “significant that [OMISSIS] has reconnected with his whānau and is endeavouring to live his life in accordance with tikanga”. [n. 56. CA judgment, above n 4, at [63].] The Court, however, quoted the following passage from Tukaki v Commonwealth of Australia with approval: [n. 57. At [63] citing Tukaki, above n 44, at [39].]
If the consequences are no more than the inevitable consequences of extradition, then to allow that they meet the threshold of oppression would be to create the “safe havens” referred to in HH v Deputy Prosecutor of the Italian Republic, Genoa. [n. 58. H(H), above n 49, at [8(4)] per Lady Hale SCJ.]
[45] Contrary to the view of Judge Cathcart in the District Court, the Court considered “the issues raised in this appeal are very finely balanced”. [n. 59. CA judgment, above n 4, at [64].] The Court said, however, that Ellis J in the High Court placed considerable emphasis on the effects of delay on [OMISSIS] and his family but did not analyse the importance of the principle of comity and did not address the seriousness of the offending. [n. 60. At [64].]
[46] The Court said that by the “narrowest of margins” it was: [n. 61. At [65].]
… satisfied that the principle of comity and the seriousness of [OMISSIS]’s alleged offending outweigh the factors [summarised above] and that Ellis J erred in law when she did not give sufficient consideration to these matters.
[47] The Court went on to say: [n. 62. At [65].]
While extradition would have the effect of separating [OMISSIS] from his child, the public interest in extradition is heightened by the seriousness of the alleged offending. Moreover, while [OMISSIS] has expressed commitment and connection to his culture, we are not satisfied that the consequences of extradition are beyond the inevitable and inherent consequences such that extradition would be oppressive. There is a high degree of comity between New Zealand and Australia, which is compounded by the seriousness of the offending and the “constant and weighty” public interest in extradition. [n. 63. H(H), above n 49, at [8(4)] per Lady Hale SCJ referring to Norris, above n 83; and Curtis, above n 21, at [30] citing Mailley v District Court at North Shore [2013] NZCA 266 at [7].] Thus, after having regard to all the circumstances of the case, we conclude it is neither unfair nor oppressive for [OMISSIS] to be extradited to Australia, notwithstanding the delay of Australia in applying to extradite him.
[48] The Court noted that there had been delays since the District Court hearing. Those delays and the effect of s 72(2) of the Extradition Act meant that the Court did not know about any changes in [OMISSIS]’s circumstances and also had no current information concerning the best interests of [OMISSIS]’s child. In addition, the Court did not know whether the ODPPWA was ready to prosecute [OMISSIS] and, if so, when and whether [OMISSIS] could be bailed to New Zealand should there be a long delay before his trial. [n. 64. CA judgment, above n 4, at [66].]
[49] The Court therefore referred the case to the Minister under s 48(1) of the Act. [n. 65. At [72]. The Court noted that, pursuant to s 48(3), the court “is not required” to refer a case to the Minister where the case concerns extradition to Australia. The Court considered this suggested that, in such cases, the court has a discretion to refer the case to the Minister and, if Parliament had intended that a referral under s 48(1) could never be made where Australia is the extradition country, it would have clearly said so: at [69].] The Court said:
[72] We prefer to follow the simplified path of referral to the Minister set out in s 48(1) and (3) of the Act. We accordingly refer this matter to the Minister to exercise his discretion under s 30 of the Act and, if he considers it appropriate, to seek undertakings from Australia that address the questions we have posed above. We also think that the Minister could, if he so wishes, seek further information about any changes to [OMISSIS]’s circumstances since the hearing in the District Court.
Developments since the Court of Appeal judgment
[50] In terms of the questions posed by the Court of Appeal in its judgment, we understand that a letter from the Director of Public Prosecutions for Western Australia has confirmed that his office is still ready to prosecute [OMISSIS], and that any trial would not occur until late 2026 or early 2027. The letter said that “it would be a rare, if not novel, occurrence” for [OMISSIS] to be bailed to reside in New Zealand but this would be a matter for the presiding judicial officer. [n. 66. Counsel for [OMISSIS] did not provide us with this letter and instead summarised it in their written submissions. Counsel for the Commonwealth made passing mention of the letter at the oral hearing but did not elaborate on its contents. There is a real issue as to whether this Court can have regard to the letter in light of s 72(2)(a) of the Extradition Act, although counsel did not raise this issue before us: see above at [7], and see below at [181] per Miller J. According to the summary provided by [OMISSIS]’s counsel, the letter does little except confirm that extradition is still sought and that there may be further delays before trial. This would have been obvious to the District Court and it is very unlikely that the District Court contemplated bail to New Zealand.]
[OMISSIS]’s submissions
[51] Ms Epati KC, for [OMISSIS], submits that the Court of Appeal erred in three overlapping ways.
Comity
[52] Ms Epati first submits that the Court of Appeal superimposed the principle of comity on the s 8 test and, in doing so, tipped “a very finely balanced” case towards surrender. The aspects of comity identified by the Court of Appeal [n. 67. See above at [43].] are already reflected in the streamlined statutory scheme in pt 4, which strikes a balance between extradition imperatives and proper restrictions on surrender. It is therefore not appropriate for a court to apply comity as a factor (or “trump card”) for the purposes of s 8(1)(c).
[53] Even if comity were relevant to the s 8 exercise, Ms Epati submits that there is real risk both to individual rights and certainty in placing any or any significant (and determinative) weight on it. [n. 68. Referring to Kevin W Gray “That Most Canadian of Virtues: Comity in Section 7 Jurisprudence” (2020) 10(1) Western Journal of Legal Studies 1 at 28.] Ms Epati explains in this regard that there is uncertainty as to the meaning of the term “comity” and its legal effect. [n. 69. Referring to Thomas Schultz and Niccolo Ridi “Comity and International Courts and Tribunals” (2017) 50 Cornell Intl LJ 577 at 578, where the authors note that to “talk of a principle of ‘comity'” in international law “is to talk of a principle that does not satisfy the legality threshold”. See also Butler, above n 36, at 68–69.] In Ms Epati’s submission, comity should not be used to read down the words of s 8(1)(c). This section, by using the words “having regard to all the circumstances of the case”, requires a fact-specific assessment when determining whether a discretionary restriction on surrender exists. The public interest in extradition is already factored into the threshold set in s 8. [n. 70. Tukaki, above n 44, at [31].] New Zealand’s international obligations and the Treaty of Waitangi are also relevant to the interpretation of s 8. [n. 71. At [34]–[35].]
Delay
[54] Second, Ms Epati submits the Court of Appeal erred in relying on observations in H(H) v Deputy Prosecutor of the Italian Republic, Genoa to buttress the conclusion that the public interest favoured surrender. [n. 72. H(H), above n 49.] She submits that both the factual context and the legal issues for the Court in H(H) were very different to those with which the Court was required to engage in [OMISSIS]’s case. H(H) concerned two requests for the extradition of parents who had fled to the United Kingdom to avoid prosecution in the requesting states. Because the parents were fugitives, they were not entitled to rely upon the passage of time as a bar to extradition under s 14 of the Extradition Act 2003 (UK). However, under s 21 of that Act, the overall length of delay remained relevant to the proportionality check required under art 8 of the European Convention on Human Rights — that is, the right to respect for private and family life. [n. 73. Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953).] Ms Epati submits that the issue for consideration by the United Kingdom Supreme Court therefore arose under art 8, which requires a different standard from that prescribed in the New Zealand Extradition Act.
[55] Ms Epati submits that other United Kingdom authorities are more relevant than H(H), and that they support the following principles in cases of delay where delay is not caused by the individual fleeing the jurisdiction: [n. 74. Referring to Kociukow v District Court of Bialystok III Penal Division [2006] EWHC 56 (Admin), [2006] 1 WLR 3061 at [10]–[11]; Loncar v County Court in Vukovar (Croatia) [2015] EWHC 548 (Admin) at [29]; Geleziunas v Prosecutor General’s Office, Republic of Lithuania [2016] EWHC 16 (Admin) at [35]–[37]; and Kazaniecki v Regional Court in Torun, Poland [2016] EWHC 3210 (Admin) at [34].]
(a) the relevance of delay is significantly different in non-fugitive cases compared with cases where a requested person has effectively brought about the delay by fleeing and evading arrest;
(b) the gravity of the offence is relevant to whether changes in circumstances render extradition oppressive;
(c) relatively commonplace hardship is unlikely to be sufficient to meet the test;
(d) the length of the delay will be of particular importance when assessing whether the impact of extradition would now be oppressive;
(e) a relevant factor will be whether the delay has engendered a sense of security in the requested person from prosecution and punishment;
(f) the extent to which a requested person has laid down family roots and become “deeply entrenched” in their home state will be of particular relevance;
(g) the additional public interest in ensuring that countries are not made “safe havens” does not arise in non-fugitive cases; and
(h) culpable delay by the requesting country is relevant to an overall assessment, and may well be decisive in what is otherwise a marginal case.
[56] Ms Epati further submits that the Court of Appeal was wrong to rely on the risk of a safe haven being created — as an argument supporting surrender — when [OMISSIS] was not a fugitive. [n. 75. See CA judgment, above n 4, at [63] citing Tukaki, above n 44, at [39], in turn citing H(H), above n 49, at [8(4)] per Lady Hale SCJ.] The Court did not give weight to the false sense of security engendered in [OMISSIS], nor did it engage with the fact that the delay was solely attributable to the Commonwealth.
Changed personal circumstances
[57] Third, Ms Epati submits that the Court of Appeal failed to analyse [OMISSIS]’s profoundly changed personal circumstances.
[58] Ms Epati submits that the Court of Appeal failed to undertake a proper, genuine and realistic analysis of the best interests of [OMISSIS]’s child and how extradition might serve or undermine that child’s interests. [n. 76. Referring to Wan v Minister for Immigration [2001] FCA 568, [2001] 107 FCR 133 at [25].] The fact a child is very young means that the effects of separation are likely to be “exceptionally severe”. [n. 77. Referring to H(H), above n 49, at [44] per Lady Hale SCJ. In that case, Lady Hale SCJ said it was not enough to dismiss cases in a simple way by accepting that children’s interests will always be harmed by separation from their sole or primary caregiver: at [34].]
[59] In addition, it is submitted that it is relevant to the s 8(1)(c) exercise in this case to consider the central place that whakapapa, whanaungatanga [n. 78. It is submitted that whanaungatanga is relevant by virtue of both the Treaty of Waitangi and because of its cultural and social importance to Māori: see Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023) at [3.48].] and cultural reconnection have come to play in [OMISSIS]’s life and the family he has created. [n. 79. Ms Epati also notes that the Court of Appeal in Tukaki, above n 44, took judicial notice of whanaungatanga as a relevant value: at [38]. However, in that case there was no specific evidence of particular relationships, responsibilities or hardships relevant to cultural practices that would flow from extradition: at [40]. By contrast, whakapapa and whanaungatanga have impacted [OMISSIS] in two ways: his reconnection with his iwi has deepened the roots he has laid down for his young family; and it has been the key to his own healing and coming-of-age journey.] There is a clear nexus between the passage of time and [OMISSIS]’s cultural reconnection. Delay enabled [OMISSIS] to build strong cultural relationships at his marae (where he plays an ongoing role) and within his wider iwi and hapū community.
[60] The letter from the Director of Public Prosecutions for Western Australia confirms that it is very unlikely [OMISSIS] will be bailed to New Zealand while awaiting trial (we interpolate here that, as noted above, there is a real issue as to the admissibility of this letter). [n. 80. Above n 66.] In Ms Epati’s submission, there is also a question mark over the possibility of bail altogether given that it would require a suitable address in Western Australia.
[61] Overall, it is submitted that to extradite [OMISSIS] in these circumstances would be oppressive.
The Commonwealth’s submissions
[62] Mr Lillico, for the Commonwealth, submits that the Court of Appeal was correct in adopting an approach which treated comity as relevant to the application of the s 8(1)(c) test. He submits further that s 8(1)(c) requires a tangible link between the delay and the cause of the alleged oppression. Lastly, Mr Lillico submits that there is a constant and weighty public interest in extradition. For the oppression test to be satisfied, something more is needed than the inherent and inevitable consequences of extradition or commonplace hardship.
Comity
[63] First, on the topic of comity, the Commonwealth submits that the fast-track extradition process under pt 4 reflects a high level of mutual trust and respect between New Zealand and Australia. “There is a justified expectation that [[OMISSIS]]’s human rights (including [his] right to a fair trial) will be met by Australia.” [n. 81. Mercer, above n 39, at [18].] Comity gives rise to the assumption that the requesting state will give the individual a fair trial according to its laws. [n. 82. Mellino, above n 43, at 554–555 per Dickson CJ, Beetz, McIntyre, Le Dain and La Forest JJ.]
[64] The Commonwealth further submits that comity is a constant and weighty public interest consideration in numerous points of decision under the Act, including the injustice limb of s 8(1). United Kingdom caselaw emphasises the importance of the public interest in extradition and the prosecution of serious crime across borders. [n. 83. Referring to H(H), above n 49, at [8(4)] per Lady Hale SCJ; and Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487 at [55] per Lord Phillips P. In addition, the Commonwealth submits that in Canada the same public interest concerns arise: see MM v Minister of Justice 2015 SCC 62, [2015] 3 SCR 973 at [149] per McLachlin CJ, Cromwell, Moldaver and Wagner JJ, where it was noted that the Minister of Justice (who is responsible for the oppression or injustice assessment in Canada) must consider the impact on children but also the importance of complying with Canada’s international obligations to its extradition partners. See also at [150].] The Commonwealth refers in particular to the decision of the United Kingdom Supreme Court in Norris v Government of the United States of America (No 2) in support of its submission that it is “only if some quite exceptionally compelling feature … is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves”. [n. 84. Norris, above n 83, at [56] per Lord Phillips P.]
[65] Additionally, it is submitted that comity considerations are heightened in cases of serious offending. That is because s 8 contemplates considerations of the seriousness of the alleged offending. Section 8(1)(a) states that “[a] discretionary restriction on surrender exists if”, having regard to all the circumstances, “because of … the trivial nature of the case” to surrender the person would be unjust or oppressive.
Delay
[66] The Commonwealth submits that, applying the notion of causation to s 8(1)(c), it is insufficient to merely say that a period of delay has created the opportunity for a change of circumstances. There must be some tangible link connecting the delay with the cause of the alleged oppression. [n. 85. Referring to Kakis, above n 15, at 782 per Lord Diplock (Lords Edmund-Davies, Russell and Scarman agreeing).]
[67] It is submitted that the applicable principles on delay were summarised by the Court of Appeal in Commonwealth of Australia v Mercer. [n. 86. Mercer, above n 39.] These principles include that, if the requesting state has been “inexcusably dilatory” in bringing the offender to justice, that may make the extradition oppressive. [n. 87. At [53] citing Kakis, above n 15, at 785 per Lord Edmund-Davies.] Nevertheless, the extradition court should be wary of reviewing the actions of foreign authorities prior to the request. The requesting state will usually be better placed to assess delay and to grant a remedy where appropriate, for instance, a stay for abuse of process. In borderline cases, prosecutorial delay may tip the balance in favour of a finding of oppression but it should not be over-emphasised. [n. 88. Mercer, above n 39, at [53].]
[68] In the Commonwealth’s submission, this is not an extreme case of delay which has been so protracted that the Court will be ready to assume that it has given rise to injustice and oppression. [n. 89. Referring to Woodcock, above n 40, at [29]. In the Commonwealth’s submission, there is no substantial difference between this case and Tukaki, where the delay was similar and Mr Tukaki made similar submissions about his removal from culture, cultural practices and whānau. He also left Australia well before the complaint was made and was nevertheless surrendered. Like [OMISSIS], he did not breach bail or escape custody.] It would be incongruous to remove the right of Australia to try [OMISSIS] purely because of the passing of time when that could not justify a stay of proceedings if the prosecution occurred in New Zealand. Such a course would, in effect, censure the officials of a friendly foreign state. The matter must also be considered in light of the fact that there was no fault on the part of the victim.
[69] Moreover, the Commonwealth submits that “safe havens” are not only relevant to cases involving fugitives. A safe haven is not just a place to which a defendant flees in breach of bail: it may simply be a place from which someone who has not evaded the authorities cannot be removed to face trial in another country. There would be the same effect if persons who had not evaded justice could not be extradited, Tukaki being a case of that nature. [n. 90. Tukaki, above n 44.]
[70] The Commonwealth further submits that [OMISSIS] cannot rely on having developed a false sense of security since returning to New Zealand. The argument that a defendant has acquired a false sense of security only arises in narrow circumstances — being those where the defendant is aware of the possibility of charge and a delay created or allowed by requesting state has induced in him or her a sense of security from prosecution. [n. 91. Referring to Curtis, above n 21; and Kakis, above n 15.]
Oppression
[71] The Commonwealth submits that the threshold for establishing oppression under s 8(1)(c) of the Act is set deliberately high. [n. 92. Referring to Mercer, above n 39, at [52]; Curtis, above n 21, at [44]; Tukaki, above n 44, at [29]; and Tukaki v Commonwealth of Australia [2018] NZSC 109 at [5].] This high standard reflects public interest considerations deriving from the seriousness of the offending and from comity.
[72] The Commonwealth submits that “oppressive” means “oppressing, harsh or cruel”. [n. 93. Referring to Mailley (2016), above n 44, at [58].] Extradition by its nature involves a degree of disruption which does not, by itself, make the defendant’s return necessarily oppressive. Hardship alone is not enough. Disruption to [OMISSIS]’s whānau and reconnection with his community and culture, while undoubtedly qualifying as hardship, cannot meet the threshold of cruelty or harshness. In this respect, the Commonwealth submits that the Court of Appeal’s finding that the consequences for [OMISSIS] were “inevitable and inherent consequences” of extradition means it did not in fact consider the case was finely balanced. [n. 94. See above at [45]–[47].]
[73] Likewise, the Commonwealth relies on Radhi (SC) for the proposition that removal from home and separation from family are part and parcel of the extradition process, as is the risk of being subject to imprisonment following trial. [n. 95. Radhi (SC), above n 36, at [38] per William Young J. Glazebrook and O’Regan JJ indicated they agreed with that paragraph, although we note that was in the context of agreeing with the point made at [37]–[38] that there was a substantial risk that Mr Radhi would not be able to return to New Zealand if convicted, and that he would be subject to the mandatory detention and immigration limbo outlined in William Young J’s reasons: at [61], n 47.] The Commonwealth points out that, while UNCROC is relevant in cases involving children, it is necessary to bear in mind that the issue is not whether it is in a child’s interests to be separated from his or her parents. Rather, the issue is whether a parent should be extradited, with a consequence being that the parent and child may be separated. [n. 96. Referring to Radhi (CA), above n 44, at [34].]
[74] Lastly, the Commonwealth acknowledges that whanaungatanga must be relevant in assessing oppression in this case, but submits that mana, hara, muru, and utu and ea must also be considered. [n. 97. Referring to Foley v R [2023] NZCA 456, (2023) 31 NZTC ¶26-009 at [33].] Several tikanga concepts are engaged and not all of these concepts reinforce a conclusion that surrender would be oppressive to [OMISSIS].
Our assessment
The law
[75] This appeal concerns the interpretation of s 8(1)(c) of the Extradition Act. The meaning of that provision “must be ascertained from its text and in the light of its purpose and its context”. [n. 98. Legislation Act 2019, s 10(1).] Relevant aspects of its purpose and context here include:
(a) that there is a “constant and weighty” [n. 99. H(H), above n 49, at [8(4)] per Lady Hale SCJ referring to Norris, above n 83.] public interest in extradition to face trial for alleged offending (and in particular serious offending);
(b) the principles behind the simplified procedure in pt 4 of the Extradition Act, including the close and trusting relationship with Australia and the confidence that the Australian criminal justice system will treat an alleged offender in a manner consistent with New Zealand human rights and fair trial requirements; [n. 100. The Court of Appeal considered these two aspects of “comity” to be relevant in this case: see above at [43]. We note, however, that the Court of Appeal’s phrasing of the latter aspect as requiring an assumption the person would be treated “the same” was an overstatement. See also below at [79].] and
(c) the New Zealand Bill of Rights Act 1990, [n. 101. Including, relevantly, the right to be tried without undue delay: New Zealand Bill of Rights Act 1990, s 25(b).] New Zealand’s international obligations [n. 102. Including UNCROC, above n 54, as the Court of Appeal recognised: see above at [44(c)].] and the Treaty of Waitangi. [n. 103. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [150]–[151] per William Young and Ellen France JJ, [237] per Glazebrook J, [296] per Williams J and [332] per Winkelmann CJ.]
[76] Looking first to the text of s 8(1), there are three gateway considerations: (a) the charge is trivial; (b) the accusation was not made in good faith in the interests of justice; and (c) the time that has passed since the alleged commission of the offence. If one of these factors is sufficiently engaged then the court must consider whether that factor, in combination with “all the circumstances of the case”, means surrender would be unjust or oppressive. Each of these three gateway considerations reveals something as to how the system is intended to work. Triviality suggests the surrender of a person in New Zealand to a foreign jurisdiction is a significant step not to be taken lightly. Bad faith indicates the integrity of the extradition process is important and that the process must not be co-opted for purposes other than law enforcement. The time factor implies the architects of the system understood that, when charges become stale, bilateral cooperation for law enforcement reduces in importance. The passage of time is therefore important in extradition terms. It is not merely a nod to the remedy of stay for delay in criminal procedure. Time is important in the same way that triviality and bad faith are, and must be given weight accordingly in the assessment of “all the circumstances of the case”.
[77] As to the time factor in s 8(1)(c), this requires consideration of whether, because of “the amount of time that has passed” since the alleged offence and “having regard to all the circumstances of the case”, surrendering [OMISSIS] “would be unjust or oppressive”. [n. 104. As the Court of Appeal noted, the injustice limb relates to risks of prejudice to a fair trial, whereas “oppressive” refers to hardship arising from changes in circumstances owing to any delay from the time of the alleged offending to when the extradition application is heard: see above at [40]. [OMISSIS] relies only on the oppression limb, although he agrees with the Court of Appeal that the two inquiries can overlap: see above at [40].] The text therefore requires a causal link between the delay and the oppression or the surrender being unjust. It also requires a holistic assessment of the combination of all of the particular circumstances (which must include the circumstances of the alleged offender and the nature and seriousness of the alleged offence). As we discuss further below, this means that the ordinary effects of delay — including getting on with life, establishing housing and undertaking employment — are to be considered as part of this overall assessment, to whatever extent such effects are applicable in the particular case. [n. 105. Below at [81]–[85].] The law may also require that some circumstances or effects are given particular weight.
[78] The terms “unjust or oppressive” are strong words which in themselves denote a high threshold. That the threshold is high is reinforced by the public interest in extradition and, in particular, extradition for serious offending. However, the test remains as outlined in s 8(1)(c). Contrary to the approach of the Court of Appeal, that provision does not envisage a balancing of the public interest against private interests. [n. 106. See CA judgment, above n 4, at [65].] The public interest in extradition is already built into the high threshold. Particular and relevant aspects of the public interest are instead to be treated as part of the circumstances the court should consider in deciding whether or not the high threshold is met. We do not find it particularly helpful to substitute synonyms such as “cruel” or “harsh”. [n. 107. Contrast above at [72].]
[79] The relevant circumstances could include what the Court of Appeal calls comity. [n. 108. See above at [43].] We note, however, that the term comity is not used anywhere in the Extradition Act. Comity might be useful as a shorthand term but this is not a substitute for considering the particular aspects of comity that are relevant. [n. 109. New Zealand caselaw has yet to produce a clear and serviceable articulation of comity and the question of whether comity is a legal principle or an extra-legal consideration remains to be clarified. The approach we have taken involves considering particular aspects of comity where relevant to the circumstances at issue in respect of either limb of s 8(1)(c) and avoids treating comity as a separate and overriding principle. Comprehensive definition and classification of such a principle is therefore not necessary in this case.] We agree that the two aspects of comity related to pt 4 identified by the Court of Appeal would be relevant to the injustice limb. [n. 110. As the District Court had found: DC judgment, above n 1, at [25].] But we do not consider they would usually be as significant in considering the oppression limb. For example, in this case, the two aspects of comity were not particularly relevant to the issue of oppression, given that the circumstances at issue in that regard — such as [OMISSIS]’s cultural connections and the interests of his young son and whānau members — would not be relevant in the Australian criminal proceedings (except, we assume, at sentencing, were he to be convicted). We thus do not accept [OMISSIS]’s submission that comity is already built into the pt 4 test and should never be separately considered. [n. 111. See above at [52].] Although, as explained below at [92], we do accept the submissions that the Court of Appeal erred in its approach to comity and that comity should not be used to read down the words in s 8(1)(c). [n. 112. See above at [53].]
[80] As noted above at [76]–[77], the relevant circumstances to be considered also include the nature and seriousness of the alleged offending. We accept that, in principle, the more serious the offending, the more difficult it will be to show that extradition would be unjust or oppressive. [n. 113. As Lady Hale SCJ said in H(H), above n 49, at [8(5)], albeit in a different context and applying a balancing approach that is not the proper one under s 8(1)(c) of the New Zealand Extradition Act: see above at [78]. Contrast above at [54].] But we also accept the submission that lengthy delay since the offence was allegedly committed can diminish the significance of that factor. [n. 114. See H(H), above n 49, at [8(6)] per Lady Hale SCJ; and see above at [55(d)].] Further, we agree that, in marginal or borderline cases where the delay is prosecutorial (including where police are responsible), this could tip the balance towards the high threshold of injustice or oppression being met. [n. 115. See above at [67].]
[81] Moving to other relevant circumstances, we do not accept the submission that what can be termed the ordinary results of extradition, for example disruption to family and cultural connections, can never reach the level of oppression. [n. 116. See above at [72]–[73].] In combination with the triviality of the charge, bad faith or the passage of time, the wider circumstances of the case may well make extradition oppressive or unjust even if some of those circumstances are not exceptional in their own right. It is the whole case that must be considered.
[82] Taking cultural connections first, the Court of Appeal relied on Tukaki, where it was held that, if the consequences are “no more than the inevitable consequences of extradition”, then the threshold for oppression would not be met. [n. 117. CA judgment, above n 4, at [63] citing Tukaki, above n 44, at [39].] The Court of Appeal in Tukaki did, however, go on to recognise that “removal of a person from their culture, cultural practices and whānau” could be relevant factors. [n. 118. CA judgment, above n 4, at [63] citing Tukaki, above n 44, at [40].] In that case, Mr Tukaki could only say that removing him from his cultural connections and support and transporting him to a place without those supports would cause extreme hardship. The Court said that this is a usual incidence of hardship flowing from extradition. But, crucially, the Court then continued: [n. 119. Tukaki, above n 44, at [40]. We do not comment on the Commonwealth’s submission on other tikanga concepts as there was no evidence in this case as to their relevance on the particular facts: see above at [74].]
Mr Tukaki does not describe any particular hardship that will flow from that disruption, no particular relationship that will be harmed, no particular responsibility that will be foregone which makes the usual incidence of extradition so acute in his case as to reach the threshold of oppression.
[83] Turning to the interests of children, the Court of Appeal rightly recognised that the ratification by New Zealand of UNCROC meant that the best interests of any children are relevant considerations. [n. 120. See above at [44(c)].] Under UNCROC, although the best interests of any child is a primary consideration, it is not the primary consideration and can therefore be overridden. [n. 121. UNCROC, above n 54, art 3(1); and Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] per Blanchard, Tipping, McGrath and Anderson JJ, with whom Elias CJ agreed in this respect: at [1].] But it is nevertheless a powerful factor which must be given considerable weight, whether or not separation of a parent from their child is one of the ordinary consequences of extradition. To say that the ordinary consequences of separation can be discounted would effectively mean that the threshold can never be reached unless there is something different and exceptional about the child or the family’s circumstances. [n. 122. As the Court of Appeal suggested: see above at [42].] This is not the standard required under UNCROC.
[84] We note that the comments in Radhi (CA) and Radhi (SC) relied on by the Commonwealth were not made in the context of delay and s 8(1)(c). [n. 123. See above at [73], and see above n 95.] The Radhi proceedings concerned referral of a case to the Minister under s 48 and in particular under s 48(4)(a)(ii) whether there were “compelling or extraordinary circumstances of the person” that meant it would be “unjust or oppressive to surrender the person before the expiration of a particular period”. [n. 124. The majority of this Court considered that there were such compelling and extraordinary circumstances in that case: see Radhi (SC), above n 36, at [55] per William Young J and [62]–[63] per Glazebrook and O’Regan JJ.] This necessarily means something out of the ordinary. There is no similar wording in s 8(1), which says explicitly that regard is to be had of “all the circumstances of the case” once the court is satisfied that one of the three gateway considerations in s 8(1) is engaged.
[85] This means that, in cases of delay, even the ordinary consequences of extradition are part of the circumstances to weigh when deciding if the high threshold is met. It is the combination of all relevant circumstances that must be considered and not each one individually. These circumstances must be assessed against the background of, and in combination with, the circumstances related to the delay (including any responsibility the defendant bears in relation to that delay and any sense of security engendered by that delay). Where the delay was caused by the defendant, it would have to be very lengthy indeed before it would become oppressive, absent other exceptional circumstances. [n. 125. See Loncar, above n 74, at [29(2)] citing Kakis, above n 15, at 782–783 per Lord Diplock and Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038 at [27].]
[86] A sense of security is more likely to indicate oppression if the person is not responsible for the delay. [n. 126. At [29(7)] citing Gomes, above n 125, at [26] and La Torre v The Republic of Italy [2007] EWHC 1270 (Admin) at [37] per Laws LJ, with whom Davis J agreed.] But we do not accept the Commonwealth’s submission that a sense of security is only relevant when it has been engendered by the authorities of the state seeking extradition and the person knows they are wanted for a crime. [n. 127. See above at [70].] It can be a relevant factor even if the person did not know they were suspected of a crime.
[87] We do, however, accept the Commonwealth’s submission that a concern not to create a safe haven does not arise only in cases of fugitives from justice (although we consider it is more acute in such cases). [n. 128. See above at [69]. We thus reject [OMISSIS]’s submissions in this regard above at [55]–[56].] But the risk of creating a safe haven is one of the reasons for the high threshold in s 8(1)(c) and so it is already built into that section.
[88] Finally, we do not accept the Commonwealth’s submission that to refuse to extradite [OMISSIS] when the delay would not justify a stay of proceedings were the prosecution to occur in New Zealand would be to censure the officials of a friendly foreign state. [n. 129. See above at [68]. We accept that the victim in this case has not been well served by the delay but that delay had nothing to do with [OMISSIS].] Delay is specifically identified as a trigger for refusing extradition and must be understood in an extradition context. [n. 130. See the discussion above at [76].] If the high threshold of injustice or oppression is met, then the court would merely be applying the statute, as it is bound to do.
Did the Courts below err in law?
[89] The High Court found there to have been two errors of principle in the analysis by the District Court. The first was using Curtis as a benchmark in too strict a fashion, [n. 131. HC reasons judgment, above n 2, at [31], and see above at [32]–[33]. The High Court noted in particular that the Judge had focused on the fact Mr Curtis was a child when the relevant offences were allegedly committed, unlike [OMISSIS]. This ignored the fact [OMISSIS] was still a “young person” as courts in New Zealand understand and apply that term: at [39]–[42], and see above at [35].] and the second was not taking into account the interests of [OMISSIS]’s child and his family in the analysis of oppression. [n. 132. At [33]–[38], and see above at [34].] We agree with the High Court’s assessment.
[90] The Court of Appeal considered that the High Court had erred by not balancing comity and the seriousness of the offending against the factors it identified as pointing against extradition. [n. 133. See above at [45].] We agree that the High Court did not (at least explicitly) take into account the seriousness of the offending in its analysis of oppression and that this was an error. [n. 134. Given that there was an error of principle in the High Court analysis (failing to take account of a relevant factor), we do not need to decide if there would have been an error of law merely because the Court of Appeal disagreed with the High Court’s analysis: see above at [7], [39] and n 8.] We do not, however, consider that failing to take into account comity was an error for the reasons set out above at [79].
[91] We have already said that the Court of Appeal erred in holding that s 8(1)(c) required the public interest in extradition to be balanced against the private interests of [OMISSIS]. [n. 135. See above at [78].] In terms of the Court’s analysis, further errors of law were made as follows. [n. 136. We do not therefore agree with Miller J when he identifies the error of law as being whether the Court of Appeal was plainly wrong: see below at [130].]
[92] The Court erred in its treatment of comity in the circumstances of this case by considering it relevant to its assessment of the oppression limb. [n. 137. See above at [79]. As we take a different view from Miller J, we do not comment on his discussion of comity below at [156]–[167]. Nor do we comment on the issue of stay discussed at [168]–[173] of his reasons.] The Court of Appeal’s approach involves taking comity into account as a separate, heavily weighted principle in the evaluative exercise, even though it is not listed as a mandatory consideration for the court under the relevant sections. This risks distorting the carefully calibrated statutory scheme. As noted above at [79], where comity is relevant either to the injustice limb or the oppression limb in the circumstances of the particular case, it may be considered as part of the assessment of that limb. But, if it is not relevant, comity should not be treated as a thumb on the scales in favour of surrender.
[93] Once the Court had found that [OMISSIS]’s case was finely balanced, the fact that it was prosecutorial (or police) delay which engendered in [OMISSIS] a false sense of security should have tipped the balance against surrender. [n. 138. See above at [80].] We do not accept the submission of the Commonwealth that the Court of Appeal did not in fact consider the case finely balanced. [n. 139. See above at [72]. This submission was based on the quote set out above at [47] but that is merely an explanation of the reasons that comity and the seriousness of the offending by the “narrowest of margins” outweighed the other factors: see above at [46]. It cannot be interpreted as meaning that the “narrowest of margins” meant nothing of the sort. Nor can it override the express rejection of the District Court’s view and the comment that the issues raised in [OMISSIS]’s case “are very finely balanced”: CA judgment, above n 4, at [64].] The Court of Appeal expressly rejected the view of the District Court that it was not a finely balanced case and also referred to its decision being reached “by the narrowest of margins”. [n. 140. See above at [45]–[46].] Indeed, the fact that the case was finely balanced, as well as the lack of up-to-date information, must have been factors in the decision to refer [OMISSIS]’s case to the Minister.
[94] Lastly, the Court erred in its explanation of the appellate approach to be taken. [n. 141. See above at [39].] The Court’s reference to Taipeti for the proposition that appeals are to be treated as general appeals was in error. [n. 142. Taipeti, above n 37.] Taipeti concerned bail and not extradition. The issue was whether a decision on a grant of bail prior to trial was discretionary, giving rise to limited review, or evaluative, giving rise to a general appeal on the merits. Appeals on bail are not limited to questions of law, unlike determinations under ss 24 and 45 of the Extradition Act. The other case referred to by the Court of Appeal, Narang, was not a New Zealand decision. [n. 143. Narang, above n 37.]
[95] The High Court in this case noted that the Commonwealth had not sought to argue that the grounds relied upon by [OMISSIS] were not questions of law. [n. 144. HC reasons judgment, above n 2, at [28].] Nor did the Commonwealth make such an argument before this Court nor, it appears, the Court of Appeal. Given our conclusions as to the other errors made by the Court of Appeal, we need not analyse the effect of the Court of Appeal’s error as to the appellate approach to be taken. In any event, the error was not material: despite the Court of Appeal’s erroneous statement that appeals in this context are general appeals, it found that the High Court had erred in law by failing to give sufficient consideration to both comity and the seriousness of the offending. [n. 145. CA judgment, above n 4, at [65].] As noted above, the Court of Appeal was not correct as to comity but was correct in respect of the High Court’s apparent failure to take into account the seriousness of the offending. [n. 146. Above at [90].]
Our analysis of [OMISSIS]’s circumstances [n. 147. Neither of the parties sought remittal to the District Court. We therefore proceed to conduct our own analysis of the facts, on the evidence before us, in accordance with s 72 of the Extradition Act: see above at [7].]
[96] First, we accept that the offending in this case was very serious. It was unprovoked and, without surgery, the victim could have suffered permanent damage. We note in particular the dangers of a kick to the head while the victim was already unconscious, even though in this case the victim fortunately did not suffer long-term traumatic brain injury.
[97] We do, however, consider that this factor has diminished in importance because of the long delay. [n. 148. See above at [80].] While [OMISSIS] has some memory of an incident while he was in Perth, he would have been well justified in thinking that, had he been a suspect, this would have been conveyed to him soon after the incident. This sense of security would have been reinforced when he travelled back to live in Australia and, while there, travelled to Vietnam, and to New Zealand, and back again to Australia without being detained or questioned at the border (except in relation to some fines). It was a sense of security engendered, as noted above, because of the prosecutorial (and police) delay and not by any actions or omissions of [OMISSIS]. [n. 149. Above at [93], and see above at [13]–[19].]
[98] Second, we agree with the High Court that, while [OMISSIS] would not have been tried as a youth had he been arrested at the time, he was still a young person in his early 20s. We also agree with the High Court that [OMISSIS] has clearly “grown up” in the interval of the delay, [n. 150. See above at [35].] including stopping drinking. [n. 151. See above at [24].] This has to be accorded some weight.
[99] Third, some weight has to be accorded to the difficulties [OMISSIS] would have in defending the charge because of the delay. [n. 152. See above at [20].] While this factor is not enough to mean extradition would be unjust, it can nevertheless be considered as part of the circumstances to be assessed when deciding whether surrender would be oppressive. [n. 153. As the Court of Appeal noted, the concepts of injustice and oppression overlap: CA judgment, above n 4, at [25]. See also Kakis, above n 15, at 782–783 per Lord Diplock; and Loncar, above n 74, at [29(1)].] It can also be inferred from the circumstances in this case that there is likely to be further delay before trial and that there will be difficulties with bail as we understand [OMISSIS] has no current ties to Western Australia. We consider it unlikely, given the extradition context, that he would be bailed to an address outside Australia. [n. 154. We draw these inferences without reference to the letter referred to above at [50]. As we said above at n 66, the District Court Judge anticipated further delays and was unlikely to have contemplated bail to New Zealand.] These circumstances weigh towards a finding of oppression.
[100] Fourth, and importantly, there is strong evidence that, during the period of delay, [OMISSIS] moved back to his papakāinga and reconnected with his whānau, hapū and iwi. He supports his widowed mother, regularly contributes time and labour to his marae, helps other kaumātua in the village and has worked for his iwi. [n. 155. See above at [25].] In other words, since returning home he has led a prosocial life and become an asset to his people. The evidence of cultural reconnection in this case is therefore significantly stronger than that in Tukaki. [n. 156. Contrast above at [82].]
[101] Finally, as the Court of Appeal recognised, [OMISSIS] and his partner have made significant changes to their lives during the period of delay on the assumption that they would be able to continue to live together. The most significant was deciding to have a child, on the assumption that [OMISSIS] would be there to provide emotional, physical and financial support to his family. [n. 157. See above at [26].]
[102] As s 8(1) requires, these factors must be considered together and holistically. A young man faces serious charges in relation to events that occurred in another jurisdiction in 2014, although the evidence suggests he was unaware of the jeopardy he faced. Delay in seeking his extradition will make mounting a defence more difficult, but more importantly, he has, in the intervening years, found a partner, had a family and built a new life with his whānau, hapū and iwi. These changes in his circumstances have been transformative for him and for those around him. It is clearly not in the best interests of [OMISSIS]’s very young son that he be deprived of his father for a long period. [n. 158. See above n 66.] We accept [OMISSIS]’s submission that the younger the child, the greater the effects of separation. [n. 159. See above at [58].] We also accept [OMISSIS]’s submission that separation would disrupt the central place that whanaungatanga has come to play in the life of his family, including his son. [n. 160. See above at [59].]
[103] Unlike the Court of Appeal, and in agreement with the High Court, we do not consider this to be a marginal case. Taking into account all of the circumstances discussed above we consider that, because of the long and inexcusable delay, to extradite [OMISSIS] would be oppressive.
[104] We therefore consider that [OMISSIS] is ineligible for surrender in terms of s 45(4) of the Extradition Act because the discretionary restriction on surrender under s 8(1)(c) applies. [n. 161. We do not agree with Miller J below at [155], [179], [186] and [191] that there is insufficient evidence to reach this conclusion. Given our conclusion that oppression is made out, there is no need to consider a reference to the Minister. We therefore do not comment on Miller J’s analysis of the scheme of the Extradition Act and his analysis of the discretion to refer to the Minister for a surrender decision: see below at [117]–[154].]
Name suppression
[105] It appears the interim suppression of [OMISSIS]’s name and identifying particulars was first granted by the District Court. Ellis J in the High Court asked counsel to confer and advise the Court as to the issue of continued suppression, [n. 162. HC reasons judgment, above n 2, at [48].] but we do not have any information on the outcome of that. The Court of Appeal also made a suppression order but does not explain the order in its judgment. Neither of the parties make any reference to name suppression in their submissions to this Court.
[106] Memoranda were filed in the District Court and the High Court suggesting the Commonwealth did not oppose interim name suppression until final determination of the surrender of [OMISSIS] and that, if [OMISSIS] was deemed ineligible for surrender and an application for permanent name suppression was made, the Commonwealth would not oppose permanent name suppression.
[107] In light of this, interim suppression should continue until an application for permanent name suppression is dealt with by the District Court. Such an application must be made promptly.
Result
[108] The appeal is allowed.
[109] The reference to the Minister under s 48 of the Extradition Act is revoked.
[110] The quashing of the surrender order by the High Court is reinstated.
[111] We make an order prohibiting publication of the name, address and identifying particulars of the appellant until further order of the District Court.
ELLEN FRANCE J
[112] I write separately, but very briefly. I do so because, differing from the majority in this respect, I consider it is appropriate to say a little about the extradition pathways identified by Miller J.
[113] As indicated above, I agree, for the reasons given, with the majority as to the test for oppression and that it would be oppressive to order [OMISSIS]’s surrender.
[114] I add that I agree generally with Miller J as to the extradition pathways set out below at [134]–[151] of Miller J’s reasons. [n. 163. I express no view on the availability of s 48(1)(a) as a separate pathway in the present case.] Reiterating the point McGrath J and I made in Radhi v District Court at Manukau, a policy choice was made in the statutory scheme to differentiate between those powers exercised by the Minister of Justice and powers exercised by the court. [n. 164. Radhi v District Court at Manukau [2017] NZSC 198, [2018] 1 NZLR 480 at [89] per Ellen France and McGrath JJ dissenting.] The distinction is an important one. And, as Miller J says, where there is doubt about the existence of a restriction on surrender, or whether anything might be done to alleviate injustice or oppression, the courts should not be reticent about referring a case to the Minister. [n. 165. Below at [154] and [162] per Miller J.]
[115] Where I differ from Miller J is that I consider there is sufficient information properly before the Court to conclude surrender would be oppressive. [n. 166. I do not consider the Court should take into account the letter of the Director of Public Prosecutions for Western Australia referred to above at [50] per Winkelmann CJ, Glazebrook and Williams JJ.] In other words, this is not a situation where referral to the Minister is appropriate. It can be inferred that it is highly likely there will be a period of separation for [OMISSIS] from his whānau, including his young child. Given the delay to date, the fact he has turned his life around, and the impact on his young child, his circumstances meet the threshold.
MILLER J
[116] I consider that the Court of Appeal reached the correct conclusion, namely that the decision whether to extradite [OMISSIS] ought to be left to the Minister of Justice. [n. 167. Commonwealth of Australia v [OMISSIS] [2025] NZCA 8 (French P, Collins and Hinton JJ) [CA judgment].] In my opinion, the Extradition Act 1999 envisages that the considerations which make extradition potentially oppressive in this case can be addressed by inquiries and assurances that are the Minister’s responsibility to make and require.
[The remainder of Miller J’s reasons at [117]–[191] concern the role of extradition and appellate courts under pt 4 of the Extradition Act, the question of law in this appeal, decision-making pathways in extradition proceedings, the role of comity, justifications for intervention in the Australian proceeding, the statutory pathway preferred by the Court of Appeal, and observations on the majority reasons. These sections are set out in full in the original judgment and are reproduced here in their entirety as they appear above in the reasons section.]
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