Bannister v Sovereign State of New Zealand [1999] QSC 426

Sc State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DOUGLAS J No 9530 of 1999 WILLIAM TUHURU DAVID BANNISTER and REVISED COPfES ISSUED State Reporting Bureau Date~ /1;&/ '1 / Applicant THE SOVEREIGN STATE OF NEW ZEALAND First Respondent and CLIVE WILLIAMSON, STIPENDIARY MAGISTRATE BRISBANE .. DATE 22/11/99 JUDGMENT 1111 Flllllr, The Law COllrls, Geoq.:e SIred, Bris"alle, Q. ·WOO Second Respondent 1 TclepllOl1(,: «(7) J!-I7 -I.VIO F:n:: «(7) J!-I7 553! -- 1 of 8 -- 221199 T4/MT1 M/T 6700/99 (Douglas J) HIS HONOUR: This is an application by William Tuhuru David Bannister against the respondent described as the Sovereign State of New Zealand. It is brought pursuant to section 35(1) (a) of the Extradition Act, 1988 (Commonwealth), lithe Act". 10 The history of this matter is extensive and up until about October 1998 it is set out in a judgment of Atkinson J number 8873 of 1998 delivered on 23 October 1998. Her Honour then took the view on a review of a previous 20 extradition order that the hardship to the accused at that stage was not so great as to amount to oppression and that C- given the seriousness of the charges his extradition to New Zealand cannot be said to be too severe a punishment. She was not of the view that it would be unjust, oppressive or too severe a punishment to surrender Mr Bannister to New Zealand. An appeal was brought from that decision to the Full Court of the Federal Court in Bannister v. New Zealand and Another (1998) 86 FCR 417, where the Full Court set aside Her Honour1s order but apparently on the narrow basis that it would be unjust and oppressive to return the appellant to New Zealand as the proceedings would be likely to take a ~ course expressly disapproved of by the High Court of Australia as objectionable because the use of mUltiple unparticularised charges prejudiced the accused by inviting the jury to convict without being directed to any specified event. 2 JUDGMENT 50 40 60 -- 2 of 8 -- 221199 T4/MTI M/T 6700/99 (Douglas J) Since that time an application was made before Justice White of this Court for habeas corpus and matters have progressed to a stage where a warrant was issued by a New Zealand District Court Judge dated 3 August 1999 and endorsed by Mr Webster, SM, a Queensland Magistrate, on 9 September 1999 pursuant to section 28 of the Act. The charges now are specified charges and I am informed by counsel for New Zealand that it is those charges and those alone upon which Mr Bannister will be charged if he is returned to New Zealand to face them. The applicant was originally remanded after being arrested under the endorsed New Zealand warrant and the hearing which gave rise to a decision under review was a hearing upon a request for proceedings to be conducted under section 34 of The Act. I have the judgment of Mr Williamson, Stipendiary Magistrate, handed down on 15 October 1999 where that Magistrate found that in the circumstances the applicant had not shown on the balance of probabilities that his extradition to New Zealand is unjust, oppressive or too 10 '2Q 40 severe a punishment. It is that decision which I am asked 30 to review. As I said, I mentioned the judgment of Justice Atkinson for historical purposes only because it conveniently sets out the history of the matter up until that time. 3 JUDGMENT 50 ~\o 60 -- 3 of 8 -- 221199 T4/MT1 M/T 6700/99 (Douglas J) Two main issue are put before me by counsel for the applicant. They are: 1. The delay overall in bringing these proceedings and in particular the delay between the successful appeal to 10 the Full Court of the Federal Court on 1 April this year and the date when the New Zealand District Court Judge signed a warrant on 3 August 1999 and, indeed, the delay until now. 20 2. Secondly, it is put on the basis that there are other reasons causing injustice or oppression, particularly the interests of the applicant's children and the conduct in New Zealand which I have referred to. That particular conduct is that six months have gone by since the decision of the Full Court of the Federal Court between 1 April 1999 and the apprehension of the applicant on 21 September 1999. It is fair to say that the decision of the Federal Court turned upon the view Their Honours there took of the nature of the charges brought against the applicant at that time. However, they did go on to deal with some other matters which might fairly be described as obiter but which, at the 3d 50 least, are persuasive with me. They deal with the question of the children, at paragraph 33 of that report, where they said: "As to the application of that invention we suggest that the extradition of the appellant to New Zealand is unlikely to have any adverse effects upon his children. 4C It will require his absence only for the time necessary 60 4 JUDGMENT ------~~---~---~~ -- 4 of 8 -- J 221199 T4/MT1 M/T 6700/99 (Douglas J) to complete the prosecution. As was pointed out in argument there is probably no reason why they could not go with him. In truth the threat to the welfare of the children lies in the possibility that he will be convicted and sentenced to imprisonment. Any detriment will be attributable to his conviction and sentence not to his extradition. The interests of children are often considered in the sentencing process, perhaps, that is the time when any argument concerning the convention should be raised. We have not been told whether New Zealand is a party to it. That would be a necessary condition precedent to raising the current argument of the course of the sentencing process. In any event we do not consider that the children's interest would be necessarily best served by refusing extradition." Counsel for the applicant relies upon Minister for Immigration v. A H Hin Teoh (1994-5) 173 CLR 273, and particularly at 286-7 and 291 per Mason CJ; 302 per Toohey J; and 304 per Gaudron J; and submits that these proceedings are fairly described as "Action affecting children." It is submitted that the removal of the children from their present circumstances would be oppressive to them and, in turn, to the applicant. Stated fairly, it is my view that the applicant must show that his extradition is unjust, oppressive or too severe a punishment in respect of him. However, considerations involving the children are relevant to determining that. The material put before me reveals that if the applicant is extradited to New Zealand it is likely that his wife and children will follow and live in New Zealand until the prosecution, should it go ahead, is completed. There will be in that circumstance an interruption to their family 5 JUDGMENT 10 20 ~ 40 50 60 -- 5 of 8 -- 221199 T5/BC7 M/T 6700/99 (Douglas J) life, their social activities and perhaps their schooling, though it should be noted that school for this year is about to finish. Teoh's case, in my respectful opinion, is different. In that case the permit which was being discussed was a permit to allow Teoh to enter Australia where his wife and children resided. The effect of refusing a permit would be to deprive the children of their father's company and presence forever unless they move somewhere other than Australia which would take them all in or perhaps even indeed back to their country of origin which they would not wish to have imposed upon them. My attention was also drawn to the decision of Green CJ, in White v. Cassidy (1979) 40 FLR 249 at 255 where His Honour said in relation to the interests of the family: "I do not regard the hardship or prejudice to his wife and children that the respondent's return to New South Wales might cause has been relevant to the considerations by themselves the injustice or oppression must relate to the respondent himself. But insofar as those considerations affect the respondent and insofar as they affect his attempts to start a new life they are material to the question of whether his return would be oppressive to him." As I have said before in the judgment, I share those views. 10 20 10 30 30 The next question is the question of the delay in bringing 50 these proceedings. Complaints of sexual conduct of this type made some many years after the event are becoming not uncommon in Australia and they are all attended with the difficulties that comes with delay in time - that is, memories grow dim, people have difficulties in defending 6 JUDGMENT 40 60 -- 6 of 8 -- 221199 T5/BC7 MIT 6700/99 (Douglas J) themselves on charges whic.h" are so old; witnesses mayor may not be available; but this does not seem to have been a reason not to bring these charges at least in this country and one would expect that in a country like New Zealand where the law is so similar it would not be an impediment 10 there as well. Those matters could be and will be, I expect, should this matter go to trial, be dealt with in the appropriate way by directions from a Judge to a jury to take into account those 20 facts. The applicant and his wife and children are currently renting a house. So there is no question of having to sell that in the mean time. They have the capacity to leave and go to New Zealand as of right and it should be borne in mind that although it is useful to compare case with case, that is not decisive of the matter. Counsel for the applicant pointed to some direct comparisons between this case and the case of Kadir Hali Venkataya (1995) 80 ACrimR 574. It is true that there are some similarities in this case but there are also some dissimilarities. In particular, in that case a particular piece of potential evidence was lost and it seems from my reading of the case that Sackville J attached significance to that and the potential loss of Venkataya1s business. The occupation of this applicant is one of working on fishing trawlers about 20 or 25 hours a week. 7 JUDGMENT 20 40 50 -- 7 of 8 -- 221199 T5/BC7 M/T 6700/99 (Douglas J) He says he enjoys his job but one would think that it carries no particu~ar skills with it and that he could obtain more than likely some sort of similar employment in New Zealand if it was available. The Act provides: "The following provisions have effect: 35(1) (d) in the case of application for review the Court to which the application is made shall review the order by way of rehearing and may have regard to evidence in addition to or in substitution for evidence that was before the Magistrate and must make a finding whether the extradition would be unjust, oppressive or too severe a punishment to surrender him to New Zealand." In my view, bearing in mind the relevant test and the onus 10 20 which is on the applicant, on the civil standard, I cannot 38 come to the conclusion that it would be unjust, oppressive or too severe a punishment to surrender Mr Bannister to New Zealand. The effect of the review therefore would be to uphold the order of the Magistrate. Which orders do you want made, Mr Keirn? HIS HONOUR: I order that the order of Mr C Williamson SM made on 15 October 1999 in relation to William Tuhuru David Bannister be confirmed. 8 JUDGMENT 20 40 3 (' " 50 40 60 c -- 8 of 8 --