Case: Bannister v New Zealand [1999] FCA 362 ; (1999) 86 FCR 417
Outcome: applied
Thus a conclusion that it would be 'unjust' or 'oppressive' ought not lightly be reached. The entirety of the legislation and context suggests that such cases will be, to recall the language of the counterpart New Zealand legislation, compelling or extraordinary. (It is, in the context, and despite what are, to an extent, imponderables, an easier and more objective judgment to say whether it would be 'too severe a punishment' to surrender a person.) The authorities referred to by Sackville J in Venkataya and subsequent authorities including Bannister v New Zealand [1999] FCA 362 ; (1999) 86 FCR 417 and Kenneally v New Zealand [1999] FCA 1320 ; (1999) 91 FCR 292 require and confirm that general approach. 110 The Longman requirement is, in my opinion, analogous to the rejection by the High Court of 'representative charges' in Australia, considered in this Court in Bannister . In that case, it appeared that, in sexual abuse cases in New Zealand (as explained in R v Accused [1993] 1 NZLR 385 at 389) where the prosecution evidence: '... does not enable more particularity than that the conduct alleged occurred a number of times over quite a long period, such as a year or more ... the practice is to specify in [a] count [that] period ... and to allege a crime (eg rape or indecent assault) during that period ... To obtain a conviction the prosecution must then satisfy the jury beyond reasonable doubt that at least one criminal act of the description alleged was committed by the accused during that period ...' 112 In Bannister the Full Court of this Court said (at [26]): 'We conclude that it is appropriate, in considering whether, "for any other reason" it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive. Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar. This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels. We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point, the two systems have diverged. In considering the present application, we can only apply the decision of our own ultimate appellate court. We do not consider that every minor difference in procedure would justify our declining extradition. Such a step will only be justified if the procedure likely to be followed in the country to which extradition is sought will render it unjust or oppressive to surrender the alleged offender. In the present case, injustice or oppression must be measured by considering the High Court's view concerning the practice which will be followed in New Zealand, which view is that it is most unlikely to result in a fair trial. The High Court has recognized that some aspects of the potential unfairness may be avoided by appropriate directions to the jury but clearly, not all of the problems can be met in this way. For example, there is nothing in R v Accused suggesting how a New Zealand court will ensure that all members of the jury base conviction on any count upon substantially the same alleged conduct. This is not merely a theoretical problem, but a real danger in the view of the High Court. In R v Accused, the New Zealand Court expressly approved the direction given by the Trial Judge in S . The High Court clearly considered it to be inadequate. Thus we conclude that proceedings in New Zealand would probably take the form expressly disapproved in S .' 113 With unfeigned respect for those who decided Bannister , it concerned me at first that that case might need reconsideration and that I should perhaps refer this matter to a Full Court. However, on reflection it seems to me that, in the light of authority as to s 34(2) and the similar provisions as to interstate extradition formerly contained in the Service and Execution of Process Act 1992 (Cth) , the approach adopted in Bannister of giving effect to strong and clear High Court authority as the measure of 'injustice' was correct, indeed inevitable. Further, the case is explicable as an instance of 'injustice' constituted not by some mere evidentiary or relatively important procedural divergence between New Zealand and Australian law, but as one of a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised, as indicated above, as a basic human right. 114 There is no suggestion that, since the alleged commission of the offences complained of, either applicant has done anything further to bring about or contribute to the delays in the complainants bringing forward their allegations. They are not in the category of persons who have fled to a foreign shore to escape justice. They have simply lived their lives and lived them lawfully. Their ordinary service in the Order, operating as it does across Australasia, has brought them to this country. Nor have they contributed in any disentitling way to the delays since they were told of the allegations. 115 Under Australian criminal law and practice, it seems likely to me, on the scant material available, that there would be no joint trials in New Zealand as proposed by the prosecution. To begin with, there could be no joint trial unless the evidence from either of the complainants was admissible to prove the guilt of another. The most common way that such material is admitted is if the picture presented in relation to the two charges is so striking that it negatives the possibility of concoction by either complainant. It is not suggested that any of the acts said to have been committed by either applicant fall outside what are, regrettably, commonplace and unremarkable ways in which male children are sexually abused. Even if that hurdle be overcome, should the actual evidence exceed present expectations, the evidence would likely be rejected in Australia if there is a real prospect of concoction or of unconscious contamination. Given the circumstances in which the complainants have made their way to the police, it may be difficult to gainsay that prospect. 117 In New Zealand it appears that the test to be applied is whether the probative value of the evidence 'outweighs' any prejudicial effect: R v Holtz [2003] 1 NZLR 667 at 675 and that, in so determining, the courts consider whether there is a 'real chance' of concoction. I agree with counsel for New Zealand that such differences as may exist between Australian and New Zealand laws of evidence are not themselves such as to invoke the Bannister principle. 118 To the extent, as suggested by New Zealand, that the evidence may be cross-admissible to show 'context' ('to explain, for example, why no complaints were made', it was said) and that, for that reason, there is no requirement that the probative value of the evidence should outweigh its prejudicial effect, appears on the face of it far-fetched. I am unaware of any case where cross-admissibility of the evidence of different complainants has been judicially conceded for such a purpose, and it is not easy to see why such evidence would furnish any relevant context of that kind. In both New Zealand and Australia the long suspicion of the common law, for good reasons, of 'similar fact' evidence is likely to continue strongly to influence trial and appellate judges. 119 Finally, there would be a discretion in the trial judge to exclude the evidence if its unfair prejudicial quality might substantially outweigh its probative value: Evidence Act 1995 (Cth) s 101. The result of a proper exercise of that discretion would seem likely to dictate that the only charges against Moloney and McGrath that an Australian court would permit to be tried together would be those arising from the allegations of the one complainant who alleges that they were engaged in some kind of joint criminal enterprise against him. As indicated above, a high degree of prejudice would appear to arise from the joint trial of any charges involving separate complainants. As counsel for the applicant put it, there is a risk that a jury may reason along the lines: 'If only one of these people complaining had made the allegation we might well have a reasonable doubt about it, but as there are more than one making allegations, we feel comfortable about accepting all of them." Such would deny the necessity for separate considerations of an satisfaction beyond reasonable doubt, an admissible evidence, as to each individual allegation, and above all of the credibility of the individual complainant. In Australia, as a matter of practice, an extraordinarily high, actual probative value would probably be required of the evidence of the other complaints. As presently advised, this appears very unlikely. 123 On such a practically important matter, an Australian judge or magistrate must view any difference between practices in the two national jurisdictions as tending, in some degree, towards injustice, given the likely consequences, and notwithstanding that, in themselves, the differences in the laws of evidence between the two countries would not attract the Bannister principle discussed at [110]-[113] above. For present purposes it is enough to say that the apparent possibility that joint trials might occur in New Zealand is a circumstance exacerbating the disabilities inherent in the applicants having to defend themselves so long after the alleged events. 131 This second aspect has also occasioned my anxious concern. However, as indicated above, I am not only bound by the approach taken in Bannister , but on reflection consider that the Bannister conclusion is inescapable for an Australian court, where there is a divergence between New Zealand and Australian law, however contestable, in a matter sufficiently serious as to turn the issue on the question of injustice. The divergence in my view, as to the Longman direction, does have that quality in the present cases. I see no way around this in New Zealand's favour. 132 Let me make it clear: my preference would be that the legislation should make it plain that New Zealand courts should deal with these problems and, in cases of such serious allegations, Australia should accept any degree of injustice to Australian judicial eyes that is not shared by our genuinely respected New Zealand counterparts: Australians generally would wish for the same degree of respect for our criminal justice system from the New Zealand parliament. But that is not what our Extradition Act says. It specifically envisages that there might be 'injustice' a broad concept in extraditing a person to New Zealand. It seems to me that, applying the Act according to its terms, the applicants have made out their case against surrender. Sackville J indicated in Venkataya at [163] that, if the result in that case was unsatisfactory, legislative change might be the answer. I venture to suggest that the outcomes in Venkataya , Bannister and this case, although regarded as necessary by the persons who decided them, may from a public policy point of view be less than satisfactory.