Phyllis Jane Safole Aka Aisha Safole v New Zealand [1997] VSC 8; [1997] VICSC 8 (14 March 1997)

SUPREME COURT OF VICTORIA

PHYLLIS JANE SAFOLE aka AISHA SAFOLE v. NEW ZEALAND
No. 1597 of 1996
Number of pages - 7
Extradition

COURT

IN THE SUPREME COURT OF VICTORIA
PRACTICE COURT
CUMMINS J

CATCHWORDS

Extradition - review of Magistrates' order - Unjust oppressive or too severe a punishment - Extradition Act 1988 ss.34 & 35.

HEARING

MELBOURNE, 14, 28 February and 13-14 March 1997 14:3:1997

Counsel for the Applicant: Miss L. Lieder QC

Solicitors for the Applicant: Director of Public Prosecutions

Counsel for the Respondent: Mrs J. Morrish

Solicitors for the Respondent: D.K. Tonkin

ORDER

Orders made.

DECISION

CUMMINS J
1. The applicant, Phyllis Jane Safole, by notice filed 23 December 1996, has applied to this court for review of an order of extradition made in relation to her at the Melbourne Magistrates' Court on 17 December 1996. The order below was made pursuant to the provisions of s.34(1) Extradition Act 1988 of the Commonwealth. The application for review is made pursuant to s.35(1) of that Act. Section 35(6), in the relevant part, provides that the court to which the application for review is made shall review the order by way of rehearing and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate.

2. Part III of the Act deals with extradition from Australia to New Zealand. The relevant statutory requirements, set forth in Part III and to which I shall later refer, were satisfied. Accordingly the question before the magistrate posited in terms of s.34(2) was whether he was satisfied that because "(a) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature; (b) if that offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or (c) a lengthy period has elapsed since that offence was committed or allegedly committed; or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released."

3. The essential matter before me is whether in terms of s.34(2) it would be unjust, oppressive or too severe a punishment to surrender the applicant to New Zealand. The circumstances said to constitute that injustice oppression or severity I shall hereunder refer to.

4. I turn first to the materials set forth in an affidavit form before me, commencing with that of Detective Sergeant George, a Federal Agent of the Australian Federal Police, sworn 10 February, 1997 and exhibits to his affidavit, including the evidence given in the court below received here pursuant to s.35(6)(d) and being Exhibit 3 to Detective Sergeant George's affidavit. That affidavit and its exhibits trace the history of the matter.

5. On 12 November 1996, the Australian Federal Police received a request from the New Zealand police for assistance in arresting the applicant and extraditing her from Australia to New Zealand. The Detective Sergeant at that time was informed that the applicant had been arrested in New Zealand on 13 January 1995 and was charged with 12 offences, namely using a document for the purpose of obtaining for herself a pecuniary advantage with intent to defraud contrary to paragraph 229(A)(b) Crimes Act 1961 (New Zealand), offences which carry a penalty of imprisonment. The amount involved, over a lengthy period of time, was $114,452. The applicant had appeared at the Dunedin District Court, South Island, and on that day was remanded on bail to appear 30 January 1995 on the condition that she surrender her passbook. She had failed to appear in the Dunedin District Court on 30 January 1995. New Zealand police had established that she left New Zealand on 20 January 1995 and that she was living in Australia. On 16 January 1996, a District Court Judge issued a warrant to arrest the applicant pursuant to s.61 Summary Proceedings Act 1957 (New Zealand). That is exhibited to the affidavit of Detective Sergeant George as Exhibit 2. It shows that on the offences charged the applicant is liable to a sentence of imprisonment and for the trial of which she is entitled to elect to be tried by judge and jury.

6. On 18 November 1996, Detective Sergeant George applied to a magistrate for the endorsement of the New Zealand warrant pursuant to s.28 of the Extradition Act 1988 ("the Act") authorizing execution of the warrant in Australia. That endorsement occurred.

7. The applicant was arrested pursuant to the indorsed New Zealand warrant on 30 November 1996. She was brought before a magistrate on 2 December 1996. An application by her for bail was refused and she was remanded in custody until 17 December 1996.

8. On 17 December 1996, application was made on behalf of New Zealand for extradition pursuant to s.34(1) of the Act. The application was opposed. The applicant was represented by counsel. Evidence was called on behalf of New Zealand namely Detective Sergeant George and on behalf of the applicant namely herself. The magistrate found that he was not satisfied it was unjust, oppressive or too severe a punishment to surrender the applicant to New Zealand and accordingly, he ordered her extradition to New Zealand. The applicant has remained in custody since that time and as I say, by notice filed 23 December 1996, she applies to this court pursuant to s.35 of the Act for review of the order below.

9. The evidence below of Detective Sergeant George exhibited as Exhibit 3 to his affidavit of 10 February 1997, traces the history of the information in the hands of the Australian Federal Police. It appears that the applicant arrived at Sydney Airport Australia on 20 January 1995 using a New Zealand passport in the name of Frances Joy Brown. The information at that time in the hands of the Australian police from its New Zealand counterparts was that the passport was stolen. It certainly was not the applicants name. With the applicant was a boy. The name used for him was Falani Payne, date of birth 25 May 1985. He was in fact Ricki Safole, the son of the applicant. Ultimately he was returned to New Zealand on 13 December 1995 to the custody of his father, Jack Safole, by action of the Department of Human Services (then called Community services Victoria) on the basis of his entering Australia on a false passport and by reason of events since then to which I shall shortly refer.

10. The Australian police took steps to find the applicant. The Detective Sergeant made inquiries of a number of addresses where the applicant might be living, using the usual police indices. He found that she had not been using the name Safole but the name Brown. She had used the New Zealand passport to obtain a Victoria driver's license permit. He went to the address of that permit in Herne Hill and ascertained that the applicant stayed there but a short time. He was informed that she may be in the Ocean Grove area but he was unable to find her there. He was informed she might have been in Torquay but was unable to find her there. He finally obtained an address for her in Warrnambool but was unable to find her there as she had vacated those Warrnambool premises some months previously. He was ultimately given the address at which on 30 November 1996 he did locate her, at 44 Adam Court in Warrnambool. He arrived with other officers at that address on that date at 2.15 p.m. A male person, Mr Khanyari, answered the door. The Detective sergeant informed Mr Khanyari he had a warrant for the apprehension of Phyllis Jane Safole. After a short conversation, Mr Khanyari informed him that there was no one of that name and only he and his wife and child were present. The officers entered the premises. The Detective Sergeant saw the applicant sitting at a table in the kitchen area of the house. He identified himself and asked her if she was Phyllis Jane Safole. She answered: "No". She said she was Aisha. Mr Khanyari said: "Aisha is my wife. We have been married for two years." The officer then asked the applicant for some identification. She got up from the table and went to her purse and obtained some cards, perhaps video cards, in the name Aisha. The officer saw an Australian Government issued Medicare card. He asked her to produce that. She did and it was in the name of Frances Jane Brown and the boy's name Falani Payne. He asked her whose card that was and she said it was hers and that Frances Brown was her non Muslim name. He asked her did she have any other form of identification such as passport. She said: "Yes, I have a passport but it is expired." She went to her room at the rear of the premises and came back a short time later and informed the officer she could not locate the passport. He informed her that that was pity because it would clear up the issue of her identity. She then returned to the room at the rear of the premises and returned with a New Zealand passport. She handed it to him. It was in the name of Frances Jane Brown. The photograph on the passport bore little resemblance to the applicant other than that the photograph was of a female. The officer then informed the applicant that he had information from New Zealand police that the passport had been reported stolen. The applicant replied: "No, it is not, it is my passport." The officer informed her that he had been told that it had been utilized by Phyllis Jane Safole to leave New Zealand and enter Australia on a stolen passport. She replied: "No, it is not true. It is my passport." The officer then informed her that he believed she was Phyllis Jane Safole and he executed the warrant on her. At no time in those premises to that officer did she admit she was Phyllis Jane Safole. Later at the Warrnambool police station the Bail Justice asked her whether she was Phyllis Jane Safole and she replied that she was.

11. The officer ascertained that the applicant was currently, that is at Warrnambool in November 1996, in receipt of a supporting parent's benefit in the name of Frances Joy Brown and claiming a dependent child, namely Falani Payne.

12. There is no civil record of the marriage of the applicant to Mr Khanyari. However, it is said that she has married him according to the rights of Islam and that that marriage is efficacious according to those rights.

13. The officer finally gave evidence before the magistrate that the father is now residing at a remote part of New Zealand with the two children being the 12 year old boy who was returned from Australia to New Zealand and a 10 year old girl. Mrs Safole gave evidence before the magistrate that at that time, that is December 1996 as well as the 12 year old boy and 10 year old daughter, she had a seven and a half month old child. She gave evidence below of a history of abuse in the marriage in New Zealand commencing a month after the marriage when her jaw was broken in two places by her husband. He had twice been convicted of assault upon her. He was imprisoned in New Zealand on 25 October 1994 for eight months and was due to be released on 1 February 1995 for assault upon her. He had on 13 September 1985 been convicted of assault upon her and given one year's probation. She gave evidence that shortly before she left New Zealand her husband was in prison but he had access to phones, that he had told her that the day he got out that she would be dead, and that she believed his threats. She said she left New Zealand because her husband was going to be released. She obtained a passport from a very good friend who gave her her passport, Mrs Brown. She said that she had met her current husband, Mr Khanyari in New Zealand. She gave evidence before the magistrate that it was a month ago that she finally married him - not two years ago as he had said in her presence to the investigating officer.

14. She gave evidence below of a history of medical conditions to which I shall refer in more particularity in relation to the medical reports. She said that her present husband, Mr Khanyari, holds a New Zealand passport and that he came to Australia in June 1995. she agreed in cross-examination that she married her husband a month ago even though he had previously abused her eldest child. She said she was not sure whether she was legally divorced from her first husband. She agreed that she had gone back to her first husband in an on and off relationship after the initial assault upon her. She said he was never violent to the children but the violence was against her which was substantial and a very real threat to her. She said that New Zealand authorities had been inefficacious in protecting her from her husband's violence, including an assault on her when she saw him at prison. He had in fact found her in the North Island when she previously left him. She was concerned if she went back to New Zealand she would be found by him again.

15. The history of the New Zealand Social Security fraud was traced in an affidavit of Detective G.W. Briggs of Criminal Investigation Branch of Dunedin, sworn in Dunedin on 16 October 1996. It is, for purposes of these proceedings, unnecessary and indeed inappropriate for me to look at the merits of that matter. I refer to it only to demonstrate the significance of the charges against the applicant in New Zealand.

16. Before me the applicant, Mrs Safole, relied upon the material below together with an affidavit sworn 23 December 1996 by Mr D.K. Tonkin, solicitor. He deposed to the evidence below and the fact the applicant is 37 years of age. She has been married to Mr Khanyari for approximately 12 months under Islamic law. The husband resides in and is employed at Warrnambool; the applicant and her husband have a seven month old daughter as at December 1996, now nine month old daughter; the applicant had been married in New Zealand but had to flee the matrimonial home because of the violence of her husband and she left New Zealand because of her fear of her husband and his assault propensity upon her; she was in fear of leaving her daughter with the child's father, Mr Khanyari in Australia because he had maltreated the elder boy; and she also has substantial health problems which need treatment in Australia. Exhibited to Mr Tonkin's affidavit are medical certificates: first, of Dr L. Hemingway of the Wimmera Medical Clinic, Warrnambool, dated 10 December 1996, which traces an iron deficiency anaemia which is a condition the applicant suffers from and which there is presently no cure. Transfusions of blood are necessary several times a year. The last, as at December 1996, were in September and November 1996. She also suffers from a oesophagitis and asthma. The Deputy Director of Medical Services of the Geelong hospital, Dr R. Fawcett, in a report dated 16 December 1996, stated the information in that hospital's records notably that on 23 June 1995 the applicant was admitted to the Emergency Department with a pleural diffusion and remained as an inpatient until 10 July 1995 and was later reviewed on 18 July 1995 as an outpatient and again on 1 and 15 August 1995. The last hospital note concerning the applicant was 18 September 1995. The asthma is reasonably severe according to the hospital notes. Dr B. Morphett of Warrnambool, by a report dated 16 December 1996, stated that he professionally knows the applicant well and "she has a long and checkered past medical history which includes the recurring iron deficiency anaemia of unknown cause." He also traced her admission to the Geelong hospital, the significance of the iron deficiency anaemia and the importance of its being treated.

17. A body of material was placed before me concerning the history of assaults by the husband in New Zealand of the applicant, notably the assault on 15 September 1994.

18. An affidavit of Ms D.L. Neill, Victim Support Worker of Dunedin, New Zealand, sworn 26 February 1997, was filed, in which in part the deponent says that on 25 October 1995, she was informed by a third person who had previously been an inmate of Mr Safole, that Mr Safole was aggrieved by his wife and was looking to find someone either to harm or kill her and plant drugs at her home. It is not suggested that that information reached the applicant.

19. The history of the matter thus reveals that there has been, over more than a decade, instances of assault upon the applicant by her husband and that she, in an on and off relationship as she called it in the court below, remained with him. He was gaoled on 20 October 1994 and was due to be released on 1 February 1995. However the fact is that when the applicant left New Zealand on a false passport with a false identity, breaching her conditions of bail on serious criminal charges and taking her child with her on a false passport, her husband was still in gaol. She left New Zealand seven days after arrest and being granted bail and 10 days before being due to appear in the New Zealand District Court. Further, since she arrived in Australia she has been living in a situation of persistent disguise. Evidence called before me this morning from an officer of the Department of Human Services, Ms Jones, reveals that even when the Department was seeking to ensure the welfare of the 12 year old child, the applicant was recalcitrant and unco-operative in her dealings with the Department insofar as those dealings might have revealed who in truth the applicant was.

20. Thus it is that this case is to be distinguished from those of Lavelle (1994) 72 A Crim R 402, a decision of Murray J of the Supreme Court of West Australia and especially from that of Venkataya (1995) 80 A Crim R 574, a decision of Sackville J, the Federal Court of Australia. In Lavelle the learned judge found that the applicant showed every sign of having transformed into a law abiding worthwhile member of the community and that that transformation from his antecedents was a rare achievement; and in Venkataya the applicant had not fled the jurisdiction or concealed his identity and had led an exemplary life since taking up residence in Australia in 1983 in relation to offences which were more than 20 years old.

21. In marked contrast this applicant has fled New Zealand jurisdiction under a false identity within seven days of being bailed to appear and having surrendered her passport in relation to charges which are both serious and substantial. I am not satisfied that her conduct in Australia stands to her credit in relation to this application. I am unsatisfied that it would be unjust, oppressive or too severe a punishment to surrender to New Zealand. The matters relied upon by the applicant are matters to which I have had careful regard, namely her health, her present circumstances in Australia, her concern in relation to her former husband's violence, and the circumstance that she is presently breastfeeding her 9 month old infant and would be separated from that infant at least overnight if she were held in gaol in New Zealand. That separation in New Zealand would essentially be overnight separation. In a New Zealand gaol she would be with the child in daylight hours only. In Victoria the child is with her continually while in custody.

22. Having given those matters due weight, nonetheless I am not satisfied that it would be unjust or oppressive or too severe a punishment to surrender the applicant whence she came on 20 January 1995 in flight, as I find she did, from a series of substantial charges of social security fraud.

23. I refuse the application to quash the order below. I confirm the order below of extradition of the applicant to New Zealand.