New Zealand v Moloney [2006] FCAFC 143

FEDERAL COURT OF AUSTRALIA

New Zealand v Moloney [2006] FCAFC 143

EXPLANATORY STATEMENT

1. As is the Federal Court's practice in complex cases and those of particular public interest, the Court has issued an explanatory statement in this case. The statement is intended to assist in a general understanding of its decision and the broad reasons for it, but it is in no way to be taken as a substitute for, or to form any part of, the Court's published reasons for judgment. The Full Court's reasons are available at www.fedcourt.gov.au. 2. New Zealand seeks the extradition of the respondents, members of a religious order, who are alleged to have committed sexual offences against young boys between 1971 and 1980. 3. Extradition between Australia and New Zealand follows a simplified process, similar to that between the States and Territories of Australia. There is however an important difference, which is that extradition to New Zealand must be refused and a person released if a magistrate, or on appeal a judge, is satisfied that for reasons that include delay "or for any other reason" it would be "unjust…" to surrender the person to New Zealand. See the outline at [1] to [5] of the Court's reasons. 4. The respondents claim that it would be "unjust" to surrender them to New Zealand. This claim was rejected by the magistrate before whom their challenge to extradition first came. He ordered that they be taken into custody. They then sought review of the magistrate's decision by a judge of the Federal Court. 5. The judge accepted their claim that because of the lengthy period that had elapsed since the offences were allegedly committed it would be unjust to surrender them. He therefore set aside the magistrate's orders and directed that the respondents be released. 6. The judge took particular account of differences between Australian and New Zealand law and especially the requirement of Australian law that on the trial of a person accused of sexual offences long after they were allegedly committed the jury must be given a special warning (known as a Longman warning after the case in which the High Court said it was required). His Honour noted that the High Court of Australia has held that a Longman warning is necessary to ensure a fair trial but that the law of New Zealand does not accept that such a warning must be given in every case. It was primarily for this reason that the judge concluded that it would be "unjust" to surrender the respondents to New Zealand. His Honour considered that their trial in New Zealand might not be fair according to the standard set by the High Court for a comparable trial in Australia. The judge was also concerned about differences in the laws of the two countries concerning trials involving multiple offences said to have been committed against different victims. 7. New Zealand appealed against the primary judge's decision and argued that an earlier decision of this Court, which the primary judge had followed, should be overruled. Because that decision was made by a Full Court of three judges, a Full Court of five judges was constituted to hear the appeal. 8. The Full Court has unanimously decided that the earlier case should not be overruled. It has also decided, however, that the trial judge did not apply the earlier decision correctly and that his judgment, being based upon an erroneous view, should be set aside. 9. It has concluded that the differences between Australian and New Zealand law do not warrant the conclusion that it would be unjust to return the respondents to New Zealand. Having considered all the factors taken into account by the judge the Full Court has concluded that, despite the long period that has elapsed since the offences for which extradition is sought were allegedly committed, it was not established that it would be unjust to surrender the respondents. 10. In reaching this conclusion the Full Court has noted that the courts in both Australia and New Zealand are sensitive to the difficulties that can confront accused persons in the position of the respondents — and that while the ways in which the difficulties are addressed may differ in some respects, the courts in both countries are under a duty to ensure a fair trial. (See [222] of the reasons for judgment). 11. The Full Court of the Federal Court has therefore ordered that the appeal be allowed and that the magistrate's order that the respondents be surrendered to New Zealand be confirmed. 12. It must be emphasised that the Full Court has in no way considered the guilt or innocence of the respondents or the strength or otherwise of the case sought to be made against them.