Curtis v District Court at Manukau [2018] NZCA 603 (19 December 2018)

Last Updated: 31 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA234/2017 [2018] NZCA 603

	BETWEEN	JASON LEONARD CURTIS Appellant
	AND	COMMONWEALTH OF AUSTRALIA Respondent

CA539/2017
	BETWEEN	JASON LEONARD CURTIS Appellant
	AND	DISTRICT COURT AT MANUKAU First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent

Hearing:	24 October 2018
Court:	French, Asher and Clifford JJ
Counsel:	D P Hoskin for Appellant K E Hogan and J M Pridgeon for Commonwealth of Australia No appearance for District Court at Manukau
Judgment:	19 December 2018 at 10 am

JUDGMENT OF THE COURT

A The appeals in CA234/2017 and CA539/2017 are allowed.

B The questions of law set out at [5] are both answered in the affirmative.

100. The District Court decision that Mr Curtis is eligible for surrender and the surrender order and warrant for detention issued by the District Court are quashed.

4. We declare under s 45(4) of the Extradition Act 1999 that Mr Curtis is not eligible for surrender.
5. If Mr Curtis seeks costs he is to file a memorandum of no more than five pages by 18 January 2019. The Commonwealth of Australia is to file a memorandum in reply by 25 January 2019.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No

Introduction The facts leading to these extradition proceedings Steps to extradite between 2011 and 2016 Mr Curtis Extradition procedure The District Court and High Court decisions The first appeal — is there oppressiveness in terms of s 8(1)(c)? The s 8(1)(c) discretion Delay Was Mr Curtis “complicit” in his Australian departure and non-return? Mr Curtis leaving Australia Mr Curtis staying in New Zealand Change of position as to guilt Service of Apprehended Violence Order Return on own volition Conclusion on complicity of Mr Curtis Youth Comparisons with other cases Assessment of oppression The second appeal — judicial review of the decision under s 48(4) Result Costs

[1] [8] [13] [23] [27] [32] [38] [38] [46] [54] [58] [63] [75] [77] [85] [88] [89] [102] [117] [132] [134] [138]

Introduction

[1] The Commonwealth of Australia wishes to extradite Jason Leonard Curtis for alleged sexual offending carried out in Australia between 2 February 2009–31 March 2009 and between 1 August 2010–30 September 2010, when Mr Curtis was aged 14–15. A complaint was made in New South Wales by the then 11yearold female complainant on 21 October 2010. Since January 2011 Mr Curtis has lived in New Zealand, initially with his mother and grandmother. The complainant’s family asked the Australian police to proceed against Mr Curtis in February 2011. There was then a significant delay. An extradition warrant was not served on Mr Curtis until May 2016.
[2] Mr Curtis resists extradition. He does so first on the basis that under s 8(1)(c) of the Extradition Act 1999 (the Act), the application for extradition should not be granted because his surrender would be oppressive. Second, he asks that the case be referred to the Minister of Justice under s 48(4) of the Act because of the existence of extraordinary circumstances.
[3] In the District Court Judge Andrée-Wiltens, in a decision delivered on 9 September 2016, refused to order a discretionary restriction on surrender under s 8(1)(c), and declined to exercise the discretion to refer the matter to the Minister under s 48(4).^[1] The Judge determined that Mr Curtis was eligible for surrender under s 45 of the Act.
[4] Mr Curtis appealed the s 8(1)(c) decision to the High Court. He also sought judicial review of the decision declining to refer under s 48(4). The appeal and judicial review were heard together in the High Court by Lang J. In a decision of 4 April 2017 he dismissed the appeal and declined judicial review.^[2]

[5] Mr Curtis has sought to appeal both these decisions to this Court. He required leave to bring a second appeal against the s 8(1)(c) decision. Leave was granted on 26 February 2018 on the following questions of law:^[3]

Did Lang J err in his interpretation and application of s 8(1)(c) of the Extradition Act 1999:

(a) In weighing as relevant to the issue of whether ordering the surrender of Mr Curtis would be unjust or oppressive, asserted complicity on the part of Mr Curtis in delay in the extradition proceedings in light of the absence (or otherwise) of connection between Mr Curtis’ conduct and that delay, Mr Curtis’ age when he left Australia and other circumstances relevant to that delay; and
(b) In failing to address the totality of the matters raised for Mr Curtis as establishing that it would be unjust or oppressive to surrender him to the Australian authorities, and in particular the totality of the circumstances of his departure from Australia, continued residence in New Zealand, the delay in the extradition proceedings (including the cause of that delay), the effect of that delay on Mr Curtis’ opportunity for an alternative resolution of his alleged offending, Mr Curtis’ age when relevant events took place and his present personal circumstances.
[6] He was also granted an extension of time to appeal against the judicial review decision, which was filed just over four months late.^[4]
[7] There are therefore notionally two separate appeals before this Court.^[5] We will deal with them consecutively in this one judgment. We refer first to the facts and the legal framework.

The facts leading to these extradition proceedings

[8] Mr Curtis was born in 1995 and lived in New Zealand until 2008, when he moved to Australia to live with his father. His natural mother stayed in New Zealand. In June 2008, when Mr Curtis was 13, his father commenced living with a woman who later became his partner in New South Wales. The partner had a daughter, the complainant, by another relationship. The complainant was four years younger than Mr Curtis. From June 2008 Mr Curtis and the complainant lived together in one home as a family with his father and her mother.
[9] It is alleged that between 2 February 2009–31 March 2009 and between 1 August 2010–30 September 2010, when Mr Curtis was aged 14–15 and the complainant 10–11, Mr Curtis sexually offended against her.
[10] Mr Curtis’ stepsister, with the support of her family, originally laid a complaint against Mr Curtis to the New South Wales police on 21 October 2010. It was agreed by the family, including Mr Curtis’ father, and with the help of outside agencies, that Mr Curtis would be sent to a youth refuge home to receive suitable treatment and counselling through the local community services centre. He moved to that home. The police accepted the family’s wishes that he be dealt with in that way, rather than prosecuted.
[11] Then on 30 December 2010, with the knowledge and consent of the community centre and the complainant’s family, Mr Curtis travelled with his father and the complainant’s mother to New Zealand for a holiday, to visit his natural mother and other family members. Mr Curtis had nothing to do with the decision to go or its organisation. He was simply informed of what was happening. Once in New Zealand, he was taken by them to stay with his mother. He deposes that his father and the complainant’s mother went on their honeymoon. Mr Curtis’ mother, who had legal custody of Mr Curtis by court order, decided to keep him with her when the father returned to Australia later in January 2011. We will return to the circumstances of Mr Curtis’ move to New Zealand and nonreturn to Australia in more detail later in this judgment.
[12] The New South Wales police subsequently laid seven charges against Mr Curtis, alleging instances of penetration of the complainant’s mouth with Mr Curtis’ penis, and attempted penile penetration of the complainant’s anus and vagina.

Steps to extradite between 2011 and 2016

[13] Following Mr Curtis’ father’s return from New Zealand without his son, the complainant’s family, including Mr Curtis’ father, indicated to the police that they wished to proceed with a criminal complaint in February 2011. Detective Senior Constable Robert Potts of the New South Wales police became officer-in-charge. Senior Constable Potts has sworn two affidavits describing the events leading to the request for extradition.
[14] On 6 October 2011, eight months after the family asked the police to prosecute, Senior Constable Potts submitted a brief of all the evidence then held by the police to the New South Wales Prosecution Command International Law Centre (PCILC). Seven months later, on 14 May 2012, the Director of Public Prosecutions (DPP) advised that it was willing to proceed with the prosecution. On 29 June 2012 Senior Constable Potts obtained a warrant in the Fairfield Local Court to arrest Mr Curtis. Senior Constable Potts also requested the New Zealand police to confirm Mr Curtis’ then address.
[15] On 7 July 2012 a member of the New Zealand police, Detective Constable Jeremy Stewart, visited Mr Curtis to confirm his address. Detective Constable Stewart swore an affidavit. He deposed that he went to the address where Mr Curtis was living. Mr Curtis’ aunty answered the door and confirmed that Mr Curtis was living at that address. The Detective Constable arranged to visit the home when Mr Curtis would be there. He did so on 11 July 2012. Detective Constable Stewart met Mr Curtis, who was with his mother and grandmother, and told him that he had received notification about the allegations of offending. Mr Curtis acknowledged that he was the person who was being referred to in the allegations. Detective Constable Stewart says that at the end of the discussion he told all three persons present they could contact him at any time if they had any questions, and that he would “be in contact” if he needed anything further from them. Detective Constable Stewart does not suggest that he referred to any possible charges, to the possibility of extradition, or to a need for Mr Curtis to return to Australia.
[16] In September 2012 Senior Constable Potts obtained internal police approvals necessary to commence preparation of an extradition request to New Zealand. At this stage Mr Curtis had not been told that he would be charged.
[17] Senior Constable Potts then visited New Zealand to sight and identify Mr Curtis. On 3 December 2012 Detective Constable Stewart took Senior Constable Potts to the address where Mr Curtis lived. Detective Constable Stewart spoke to Mr Curtis in the driveway about his year in school and confirmed that he was still living at the address. The Detective Constable also spoke to Mr Curtis’ grandmother who confirmed what Mr Curtis had said. Senior Constable Potts did not speak to Mr Curtis but remained next to the police car. When Detective Constable Stewart returned to the police car Senior Constable Potts confirmed that he was satisfied that the person who had been spoken to was Mr Curtis.
[18] Thus, there is no suggestion that Detective Constable Stewart or Senior Constable Potts, at any time in 2012, indicated in any way to Mr Curtis or his mother or grandmother that Mr Curtis was to be charged, or that he should return to Australia.
[19] Eight months after Detective Constable Stewart’s first visit, in February 2013, the New South Wales police submitted an extradition request along with the first arrest warrant to New Zealand. The New Zealand authorities rejected the first extradition request because of “differences in our countries’ youth justice systems”. On 12 June 2013 Senior Constable Potts provided a replacement arrest warrant to PCILC. It seems that the second extradition request was returned from New Zealand because of some problem which meant it was unacceptable. The problem is not explained in the evidence before us. Australia claims privilege in respect of the communications surrounding the refusal of the request.
[20] Between February 2014 and November 2015 Senior Constable Potts deposed that he “regularly reviewed the file and sought updates”. Senior Constable Potts reported that in October 2014 he received an email from PCILC about the length of time it was taking to receive the direction of willingness to prosecute Mr Curtis from the DPP. He was advised that the DPP solicitor with carriage of the matter had been “delayed” because of workload. There were then changes of personnel within PCILC. Updates were sought through 2015 and a DPP affidavit was eventually sworn on 14 December 2015. Whatever the reasons, what is clear is that almost another two years went by. The third extradition request was submitted in January 2016.
[21] In the meantime, Mr Curtis voluntarily visited Australia twice, in January and March 2016. There had originally in 2012 been an alert known as a PACE Alert which would have made the New South Wales police aware of Mr Curtis’ return. However it had inadvertently been allowed to lapse, which is why Mr Curtis was not contacted by the police during those visits to Australia. The warrant for his arrest was finally served on Mr Curtis in May 2016.
[22] In summary, the delay between the complaint being re-activated in February 2011 and the warrant being served on Mr Curtis in May 2016 was because of delays by the Australian authorities. Those delays are not all explained, but included the filing of documentation unacceptable to the New Zealand authorities, overwork of key personnel and changes of personnel. The total delay between the first complaint in October 2010 and service of the extradition papers in May 2016 was almost six years.

Mr Curtis

[23] As we have set out, on his return to New Zealand Mr Curtis initially lived with his mother, who had an order giving her custody of him until he turned 16. He turned 16 on 2 February 2011.
[24] He went to Onehunga High School and obtained NCEA Level 3. After school he went and worked as a storeman for a period of approximately three years. He proceeded to complete studies to obtain a National Certificate in Fitness and Personal Training and a small-business diploma. He is now a recognised body builder having won prizes in both the Waikato and New Zealand International Federation of Bodybuilding Championships. He has registered as a personal trainer with the New Zealand Institute of Health and Fitness and has ambitions to start his own business.
[25] There have been a number of affidavits filed setting out his personal circumstances. At the time of swearing his affidavit on 1 August 2016 he was in a secure five-year relationship, living at the home of his partner’s parents since 2012. He never heard from his father after January 2011. Mr Curtis’ father committed suicide in 2012 after an argument with the complainant’s mother. Mr Curtis has no family or friends in Australia.
[26] Mr Curtis is now 23 years of age, and has no convictions. He has filed affidavits testifying to his good character. He denies the alleged offending against his stepsister. We return to his personal circumstances later in this judgment.

Extradition procedure

[27] Part 4 of the Act provides a simplified procedure for extradition to Australia and certain other countries. A New Zealand District Court judge may endorse warrants issued by those countries for arrest of the person.^[6] Under s 45(2) of the Act a person that falls within this part of the Act is eligible for surrender if:

• (a) an endorsed warrant for their arrest has been produced to the court;
• (b) the court is satisfied the person is an extraditable person in relation to the extradition country; and
• (c) the offence is an extraditable offence in relation to the extradition country.

[28] Under s 45(3) if the person satisfies the court that there is a mandatory restriction on surrender, or it would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country, the person is not eligible for surrender.
[29] In addition, under s 45(4) the court may determine a person is not eligible for surrender if that person satisfies the court that a discretionary restriction on the surrender of the person applies under s 8. The relevant part of s 8 is as follows:

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.

...

(Emphasis added.)

This part of the appeal concerns delay in terms of s 8(1)(c).

[30] In Mailley v District Court at North Shore pt 4 of the Act was referred to by this Court in this way:^[7]

[7] Extradition between Australia and New Zealand is governed by a special procedure contained in Part 4 of the Act. The Part 4 procedure is less formal and more streamlined than the procedures pertaining to extradition between New Zealand and most other countries. It reflects the high degree of comity between New Zealand and Australia.

[31] In Commonwealth of Australia v Mercer this Court said of this:^[8]

[18] That comity means a more expedited “fast track” procedure applies. There is a justified expectation that the respondent’s human rights (including right to a fair trial) will be met by Australia. The procedure is therefore referred to as a “backed warrant procedure”, with New Zealand asked to back the overseas warrant for arrest. Indeed one of the specific objects of the Act is to “provide a simplified procedure for New Zealand to give effect to requests for extradition from Australia.”

The District Court and High Court decisions

[32] The District Court Judge rejected evidence from Mr Curtis that on the second visit of the police officer he was told that the matter of the alleged Australian offending was at an end.^[9] The Judge found that there was no bad faith on the part of the Australian authorities.^[10] The Judge held that despite Mr Curtis not remembering being served with a document while he was in Australia called an “Apprehended Violence Order”, he was so served.^[11] In an important paragraph quoted in the High Court the District Court Judge stated:

[40] I did not accept the delay inherent in this matter is all capable of properly being ascribed to the New South Wales police or the prosecution. Mr Curtis was complicit in the decision to not return to Australia, and given that he was in my view fully aware of the allegations and the arrangements entered into to avoid a prosecution, he must have known the possible repercussions of not abiding by the terms and conditions put in place. I also took into account that Mr Curtis turned 16 on 2 February 2011, just days later than his intended return travel; and that he was then in a position to return to Australia if he saw fit. It follows that at least some of the early delays may be placed at his feet. I also do not lose sight of the fact that he could have returned to Australia at any time to surrender himself voluntarily.

[33] The Judge considered that the delay had been five years, which was less than other cases where the discretion had not been exercised.^[12] He stated that there was no evidence before him that there were deliberate steps on the part of the Commonwealth of Australia to subvert the court process and he could not therefore classify the delay as undue.^[13] He thought that there were insufficient grounds to find in favour of Mr Curtis on the basis of delay.^[14] He considered that the change in Mr Curtis’ personal circumstances during the delay, and the life Mr Curtis has built as an adult in New Zealand, were not caused by the delay and were therefore irrelevant under s 8(1)(c).^[15] The Judge thought that the passage of time was a matter to be canvassed at sentencing in Australia and did not think that there was compelling evidence of prejudice to Mr Curtis’ defence because of delay.^[16] The fact that Mr Curtis’ father had committed suicide in 2012, and therefore could not be called as a witness, was insufficient prejudice.^[17]
[34] The Judge concluded that it would not be unjust or oppressive to surrender Mr Curtis.^[18] He said:^[19]

The various factors I was invited to consider, appeared to me to be inherent in most if not all extradition cases. Further, most of the matters adverted to can and no doubt will also be raised at trial in Australia; and I have every confidence that the New South Wales Court, with the benefit of greater information, will be able to [deal] effectively with all these issues.

[35] His decision was upheld in the High Court. Lang J, under the heading “Mr Curtis’ complicity in remaining in New Zealand since 2011”, referred to [40] of the District Court decision,^[20] and rejected a submission that it was wrong to say that Mr Curtis was complicit in the decision not to return to Australia in January 2011.^[21] He observed:

[27] Mr Curtis also agreed in cross-examination before the Judge that he did not want to return to Australia. In addition, and as the Judge observed, Mr Curtis turned 16 years of age on 2 February 2011. He was free to return to Australia to surrender voluntarily at that point but has chosen not to do so.

[28] All of these factors confirm there was evidence from which the Judge could conclude that Mr Curtis was complicit in the decision not to return to Australia. There is therefore no error of law in this respect.

[36] Lang J found no error in the Judge’s reference to delay in other cases, given that the Judge ultimately conducted a detailed analysis of the effect of the delay on Mr Curtis specifically.^[22] He upheld the Judge’s finding that there was “ample evidence on which the Judge was entitled to find that Mr Curtis was aware of the arrangement that all the parties entered into with the police in or about October 2010”.^[23] He considered that although there had been five years’ delay and periods of apparent inactivity, the actions of the Australian authorities were not “inexcusably dilatory”, following Commonwealth of Australia v Mercer.^[24] He noted that relevant injustice must lie in the act of extradition and did not think that Mr Curtis’ ability to obtain a fair trial would be prejudiced by the delay.^[25]
[37] Lang J considered that the loss of some sentencing options in Australia that were no longer available because Mr Curtis is now an adult was a neutral factor, because he “will continue to be treated in a manner appropriate to his or her age at the time of the offending”.^[26] Lang J agreed that there was no prejudice shown to have arisen from the death of Mr Curtis’ father.^[27] On security from prosecution he concluded:^[28]

Furthermore, Mr Curtis must have realised as soon as he elected to stay in New Zealand with his family that in doing so he was taking the risk that charges would be laid in Australia.

The first appeal — is there oppressiveness in terms of s 8(1)(c)?

The s 8(1)(c) discretion

[38] We have set out s 8(1)(c).^[29] The discretion under s 8(1)(c) may be exercised if the amount of time that has passed since the offence is alleged to have been committed makes it, having regard to all the circumstances of the case, unjust or oppressive to surrender the person. This discretion has been a feature of extradition legislation throughout the British Commonwealth since the 19th century.
[39] In 1978 the then equivalent to s 8(1)(c), s 8(3)(b) of the Fugitive Offenders Act 1967 (UK), was considered by the House of Lords in Kakis v Government of the Republic of Cyprus.^[30] This leading judgment has been applied in New Zealand.^[31] In that case Mr Kakis was a member of a militant political organisation that was allegedly involved in a murder in 1973. He then participated in a coup which ousted the Makarios government, and after that left Cyprus to settle in England with his wife under a permit from that new government in September 1974. In December of that year the old government resumed power, but proclaimed an amnesty. Mr Kakis returned briefly to Cyprus in January 1975 having been granted an entry visa and an exit permit. However, the amnesty ended in October 1975 and in February 1976 the Cyprus government sought to extradite Mr Kakis from England. Mr Kakis was arrested in London over a year later on 28 March 1977. The government of Cyprus was successful in the lower courts, but the House of Lords held it would be unjust or oppressive for Mr Kakis to be extradited.
[40] In considering the sequence of events and delay Lord Diplock observed:^[32]

So one must look at the complete chronology of events ... and consider whether the happening of such of those events, as would not have happened before the trial of the accused in Cypus if it had taken place with ordinary promptitude, has made it unjust or oppressive that he should be sent back to Cyprus to stand his trial now.

[41] The Court discussed the distinction between a decision to surrender that was “unjust” as against a surrender that was “oppressive”. Lord Diplock said:^[33]

“Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.

That distinction is accepted in New Zealand.^[34]

[42] In Kakis the appeal was allowed, and Mr Kakis was not returned to Cyprus. The rationale was set out clearly by Lord Scarman:^[35]

The oppressiveness in returning him for trial would arise because during the years that have elapsed since the end of July 1974 events have conspired to induce in Mr Kakis a sense of security from prosecution. Yet during these years he has not led the life of a fugitive from justice. On the contrary he has settled in this country openly and — as it must have appeared to him — with the assent of, or at the very least without objection by, the authorities in Cyprus.

[43] Mr Curtis’ position could not be advanced on the basis of injustice, given Lord Diplock’s distinction between injustice and oppression. It was not put to us on appeal that the delay in issuing the extradition warrant would prejudice the conduct of the trial itself. There could be no challenge to the finding in the District Court and High Court that it had not been shown that the death of Mr Curtis’ father would be any impediment to a fair trial. There is nothing to suggest that he could give evidence helpful to Mr Curtis. The issue is therefore the oppression to Mr Curtis arising during and from the period of the delay.
[44] The onus of establishing that the s 8 requirements are met is on the person resisting extradition, on the balance of probabilities.^[36] The threshold for oppression is high.^[37] The courts are cautious. In Woodcock v Government of New Zealand Lord Justice Simon Brown observed:^[38]

[26] I would add just this with regard to the concept of oppressiveness in s 11(3)(b). As I observed during the course of argument, it seems to me in any event puzzling in present times why someone should be able to improve their chances of escaping trial by travelling abroad and then changing their circumstances in their new country of residence. Why, say, should an Australian who has committed a series of frauds in Sydney then be better placed to escape trial (through it being found oppressive to extradite him) if he moves to England than if he moves to Darwin? The court should to my mind be wary of paying excessive heed to “hardship to the accused resulting from changes in his circumstances” following upon the accused’s move to another country when equivalent hardship is likely to have occurred even had he remained in his country of origin.

[45] We bear in mind these principles, applied by this Court in Mercer,^[39] in considering whether it would be oppressive to surrender Mr Curtis, given the amount of time that has passed since the offence is alleged to have occurred and having regard to all the circumstances of the case.

Delay

[46] An important consideration in a decision under s 8(1)(c) is the amount of time that has passed since the offence was alleged to have been committed or was committed. The delay here was described generally in the District Court and High Court as five years. In terms of the cases referred to in the District Court, there have been much longer delays of up to 20 years where extradition has been granted.^[40]
[47] Significant delay by the prosecuting authority is of a different type to delay by the complainant in the context of sexual allegations. Delay by a complainant who has suffered sexual assault is understandable and indeed common. Delay by the prosecuting authority is undesirable and to be discouraged.
[48] Judicial attitudes to such delay can vary. Lord Diplock in Kakis observed that:^[41]

Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude.

[49] Lord Edmund-Davies did not agree with this part of Lord Diplock’s judgment. He observed:^[42]

In my respectful judgment, on the contrary, the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor: see, for example, Reg v Governor of Pentonville Prison, Ex parte Teja [1971] 2 QB 274, 290, per Lord Parker CJ and the speeches in this House in Reg v Governor of Pentonville Prison, Ex parte Narang [1978] AC 247.

[50] In R v Mercer this Court said:^[43]

[53] Delay by the requesting state may in some cases be relevant to whether there is oppression. Lord Edmund-Davies in Kakis said that if the requesting state has been “inexcusably dilatory” in bringing the offender to justice, that may make extradition oppressive. But as Lord Diplock pointed out, assessing whether inaction by the authorities is blameworthy or otherwise could be an invidious task. As a matter of comity, the extradition Court should be wary of reviewing the actions of foreign authorities leading up to the request. The requesting state will usually be in a better position to assess the dilatoriness of its authorities and grant a remedy where appropriate, such as a stay for abuse of process. Prosecutorial delay, therefore, may in borderline cases tip the balance in favour of a finding of oppression, but it should not be overemphasised.

[51] This case is not about the delay between the offending and the complaint (which as we have indicated is often the case in child sex offending), but the delay that has followed the request for prosecution by the family in February 2011, and the ultimate service of the extradition papers in May 2016. This delay can be described as institutional delay, the institution being the Australian police and prosecuting authorities.
[52] The frank explanation for the delays set out by Senior Constable Potts does not show any bad faith on the part of the Australian authorities, and indeed that has not been alleged in submissions. It does however show the history of what appear to be mistakes, documents and requests being rejected, and periods of delay because of workload. None of the cases relied on in the District Court and High Court featured this amount of institutional delay that could be directly attributed to the prosecuting authority in the context of the surrender of a child or young person. Extradition is a complex process and comity with and respect for the Australian legal process mean that a court must be cautious in drawing conclusions about the reasonableness of the delay. But it must be recognised that the delay here was undue. We review relevant extradition cases where there has been delay later in this judgment.
[53] When a person accused of offending chooses to leave the country of the offending and set up life elsewhere, responsibility for the delay is not generally relevant and the focus is on how the delay has created oppression. The situation that arises in this case, however, is unusual in that it cannot be easily said that Mr Curtis chose to leave Australia. We now turn to that topic.

Was Mr Curtis “complicit” in his Australian departure and non-return?

[54] It was submitted for the Commonwealth of Australia that the finding in both courts that Mr Curtis was complicit in the delay was not central to the judgments. We do not accept that. Mr Curtis’ alleged complicity was dealt with at length in both judgments, and was very much a part of the determinations that the delay was not oppressive.
[55] Later in this judgment we deal specifically with Mr Curtis’ youth at the time of the offending and the complaints, in the context of the oppressiveness of the delay. In this part of the judgment, we focus on the strong findings in both the District Court and High Court that Mr Curtis was “complicit” in his departure from Australia and non-return. Inevitably his youth is also a relevant if not a central factor in assessing those circumstances.
[56] We turn to the factual analysis of complicity. The circumstances of the complaint being made against Mr Curtis, steps then taken in Australia, and his departure from Australia and non-return, are derived largely from the affidavits of Senior Constable Potts and Mr Curtis himself, and to a lesser extent the affidavit of Mr Curtis’ mother.
[57] There is no direct evidence from the Commonwealth of Australia concerning Mr Curtis’ departure. The material before the Court in this regard is hearsay; it is derived from the statements Mr Curtis’ father made to Senior Constable Potts. That in itself does not mean that the evidence should not be taken into account. There was no contest as to its admissibility before us. We are satisfied that Senior Constable Pott’s evidence as to Mr Curtis’ departure from Australia was sufficiently reliable to be admitted.^[44]

Mr Curtis leaving Australia

[58] Mr Curtis deposed that he was told by his father about the allegations of sexual offending in late-2010. He stated that the police came over to the house in the next day or two and says he was “told that I was not allowed at home any more and had to live somewhere else”. This is consistent with the evidence of Senior Constable Potts who says that the New South Wales police were contacted on 21 October 2010 as a result of a family discussion.
[59] Again it seems common ground in the affidavit material that at that stage the family did not want Mr Curtis to be formally charged and that Mr Curtis was required by the family to go and live in alternative accommodation. Although Senior Constable Potts was not directly involved at the time, he reported that the family did not wish to have Mr Curtis formally charged, but this “was conditional on Curtis receiving treatment and counselling”. The family indicated that they would allow Mr Curtis to come home in the future, but he needed treatment before he could safely live with them again. The New South Wales police did not formally interview, speak to, or meet directly with, Mr Curtis at that time.
[60] Mr Curtis was referred to the New South Wales “New Street Adolescent Service” for counselling on 26 October 2010. Mr Curtis resided at a youth refuge home under the care of the Fairfield Community Services Centre, which we will refer to as the Fairfield Facility, until 30 December 2010 when his father uplifted him to take him to New Zealand. Senior Constable Potts reports that while he was at the Fairfield Facility Mr Curtis received active counselling (although Mr Curtis denies any memory of that). Senior Constable Potts reports that in a conversation with him the following year Mr Curtis’ father advised him that Mr Curtis had admitted the offending in the initial family discussions in October 2010.
[61] Mr Curtis deposed that after the original complaint, when the police became involved, he did not know where he was going or what was happening. He was taken to the Fairfield Facility within days of the complaint being made. He stated in his affidavit that he never received any counselling or treatment during his stay. His father stayed in touch with him while he was at the Fairfield Facility mostly by phone and also visited him on occasion. He continued his schooling, although it involved four different modes of transport to attend school from the Facility.
[62] In December 2010 Mr Curtis’ father and his partner decided to go to New Zealand for Christmas where Mr Curtis deposed they were to “continue on with their honeymoon”. Mr Curtis was 15. They decided to take him with them and this departure from Australia was, according to Senior Constable Potts “discussed with Curtis’ counselling provider, New Street”. Senior Constable Potts also deposed that a “safety plan” was discussed with Mr Curtis’ family in New Zealand.^[45] In accordance with this plan, on 30 December 2010 Mr Curtis, with the approval of the family and the Fairfield Facility, departed Australia with his father and his father’s partner, for New Zealand.

Mr Curtis staying in New Zealand

[63] Mr Curtis deposed that his father and his partner “dropped” him at his mother’s address in Auckland. Mr Curtis’ mother has sworn an affidavit which was not challenged. She reported that after Mr Curtis’ return, Mr Curtis’ father met with her to discuss Mr Curtis. She deposed:

8. When we met the next morning, I said to Jason’s father that I was not going to send Jason back to Australia. I couldn’t bear the thought of Jason going back to live on his own. Jason’s father and I argued and he left the address. Jason was not involved in the discussion or my decision to have him stay with me.
9. Not long after Jason’s father left the address that day, I then received a telephone call from a policewoman at the Mangere Police Station. It appears that Jason’s father had spoken to her. I told her that I had formal custody of Jason and I was entitled to have him in my care. The officer appeared to accept this explanation and I heard nothing more about it. Annexed and marked “A” is my custody order granting me custody until Jason was 16 years of age (i.e. until 2 February 2011).

10. I did not hear from Jason’s father again or the Australian authorities.

(Emphasis added.)

[64] As Mr Curtis put it:

In January 2011, my mother told [me] that I was not going back to Australia and I was going to live with her in Auckland from now. I was not involved in that decision. I was not aware of any discussions between my father and mother about this. I was not aware of any agreement that I was to go back to Australia or any potential consequences for failing to do so.

(Emphasis added.)

[65] It is plain therefore on the uncontradicted evidence of Mr Curtis’ mother, which is consistent with what is reported by Senior Constable Potts, that the decisions as to Mr Curtis’ departure from Australia for New Zealand, and then to stay in New Zealand, were made by his parents without consultation with him.
[66] In the quote that we have already set out from the District Court judgment (approved in the High Court) the Judge said:^[46]

Mr Curtis was complicit in the decision to not return to Australia; and given that he was in my view fully aware of the allegations and the arrangements entered into [to] avoid a prosecution, he must have known the possible repercussions of not abiding by the terms and conditions put in place.

[67] We accept of course that Mr Curtis was aware of the allegations that were made, and that following the allegations arrangements were entered into for him to live away from home, and to have counselling. However, that awareness cannot make him complicit in the later decisions made by his parents on his behalf as a young person, without money or any control, about where he would live.
[68] We also question the effective finding of fact by both judges that Mr Curtis was aware of the possible repercussions of him not abiding by the terms and conditions put in place following the original complaint in October 2010. There is double hearsay evidence from Senior Constable Potts to the effect that Mr Curtis’ father told him that Mr Curtis was part of family discussions, and Mr Curtis was aware that he was being sent away from home because of the allegations and to receive treatment and counselling. Senior Constable Potts deposed:

At the end of October 2010 [the complainant’s mother] and [Mr Curtis’ father] advised New South Wales (NSW) Police that as the result of a family discussion, including talking with the victim and also Curtis himself, they did not wish to have the respondent formally charged. They were clear that the family’s agreement was conditional on Curtis receiving treatment and counselling. The family in Australia indicated to NSW Police that they had a home for Curtis but felt strongly he needed treatment before he could safely live with them again. Although NSW Police did not meet with Curtis himself at that time, [Mr Curtis’ father] and [the complainant’s mother] indicated that they had spoken with [Mr Curtis’ father] and [the complainant’s mother] as part of their family discussions.

[69] It is not a fair reading of Senior Constable Potts’ statement to assume that Mr Curtis was aware that he had to complete a counselling course to avoid prosecution. When Senior Constable Potts said “[t]hey were clear that the family’s agreement was conditional ...”, the “they” appears to be Mr Curtis’ father and the complainant’s mother, and not necessarily Mr Curtis. This very general hearsay evidence indicates that Mr Curtis may have been spoken to by his family about not being formally charged and going for counselling, but there is nothing to show that one was conditional on the other. When the existence of a conditional arrangement was put to Mr Curtis in crossexamination, he said “I didn’t know what was happening or what was going to happen”. Certainly he was never spoken to by the police.
[70] Even if Mr Curtis was aware of the arrangement, the arrangement appears to have been reached within the family, with limited involvement by the police. There is no formal record of the arrangement. Senior Constable Potts deposed:

At the end of October 2010 [the complainant’s mother] and [Mr Curtis’ father] advised the New South Wale[s] (NSW) Police that as a result of a family discussion, including talking with the victim, and also Curtis himself, they did not wish to have the respondent formally charged. They were clear that the family’s agreement was conditional on Curtis receiving treatment and counselling. The family in Australia indicated to NSW Police that they had a home for Curtis but felt strongly he needed treatment before he could safely live with them again. Although NSW Police did not meet with Curtis himself at that time, [Mr Curtis’ father] and [the complainant’s mother] indicated that they had spoken with Curtis as part of their family discussions.

(Emphasis added.)

[71] This evidence strongly suggests that police were simply informed of the arrangement, which was reached by the family independently of the police. The police clearly chose to respect that arrangement and did not charge Mr Curtis at that time. We therefore do not consider that Mr Curtis could be said to have defied the police by leaving Australia. The decision to take him to New Zealand was made by his father, who was ostensibly responsible for the arrangements concerning the repercussions of the original complaint. His father let him stay in New Zealand with his mother. From Mr Curtis’ perspective, the arrangement, if he was aware of any arrangement, had simply changed. Mr Curtis had no reason to think his remaining in New Zealand would be contrary to the wishes of the New South Wales police.
[72] All Mr Curtis’ conduct that followed is inconsistent with any understanding that he had been wrong to leave Australia. He continued to live openly in Auckland with his mother and grandmother. He and they made no attempt at any stage to hide his whereabouts or activities, and on the two occasions that we have described in 2012 when the police called to see him (making no suggestion to him that he might be prosecuted or that he should return to Australia) all three were open and cooperative. Indeed the ultimate indication of his lack of appreciation of repercussions is that he went to Australia himself twice in early 2016, before he was served with the extradition warrant. These actions are a strong indication that he and his family in New Zealand did not think he was at any risk, or that he had done anything wrong in staying in New Zealand as his mother had required.
[73] In the High Court the Judge also referred to the fact that Mr Curtis “agreed in cross-examination before the Judge that he did not want to return to Australia”.^[47]

The exchange in evidence was as follows, this being cross-examination of Mr Curtis by counsel for the Commonwealth of Australia:

17. When you left Australia did you expect to be returning to Australia?
1. Um, yeah. ‘Cos that’s where I stayed with my dad.
17. And there was then a decision made that you would stay in New Zealand, and your mum drove that decision, didn’t she?
1. Yeah.
17. And that was because she found out about the allegations against you and the fact that you were staying in a boarding house in Australia, is that right?
1. I’m not sure.
17. Were you part of that conversation?
1. No.
17. How were you informed about what was happening?
1. My mum told me.
17. What were your views on the matter?
1. Views on — on going back?
17. Staying or going back. What did you want to do?
1. Oh, I had no choice. My mum just told me I’m staying here. I was only 15. I didn’t —
17. But what did you want to do?
1. I don’t know what I wanted to do. I want — just want to be by my family and all my family’s here in New Zealand.
17. Did you want to go back to Australia and live in that boarding house?
1. No. My dad only came on Christmas Day just for one hour. I had no one else there.
17. And your dad wasn’t in contact with you after he returned to Australia, was he?
1. No, he didn’t.

[74] We are unable to agree that this exchange supports a conclusion that Mr Curtis was complicit in the decision to stay in New Zealand. Indeed, as was put to him by counsel for the Commonwealth of Australia, the decision was made for him by his parents. He had expected to return to Australia, but because he would be living in the Fairfield Facility, and had no-one in Australia but his father who seldom visited him, he accepted that, when told he was staying in New Zealand, he did not want to go back to Australia “and live in that boarding house”. That is hardly surprising, nor is it evidence of complicity.

Change of position as to guilt

[75] Ms Hogan for the Commonwealth of Australia placed reliance on an apparent change in position on Mr Curtis’ part in relation to his guilt. His father reported to Senior Constable Potts that Mr Curtis had admitted the sexual offending in the family discussions in October 2010, but then when he had a discussion with him in January 2011 about him returning to Australia, Mr Curtis denied that offending. We do not consider this change of position (not accepted by Mr Curtis) adds to the case for complicity. Mr Curtis was 15 years old. He had initially done what his father told him to do in leaving Australia, and he was now doing what his mother told him to do in staying in New Zealand. In our assessment, his denial of wrongdoing cannot be drawn on in aid of a finding of complicity, that is, Mr Curtis being involved in the decision that he not go back to Australia.
[76] Even if the assumption were made that he was told that non-prosecution was conditional on him completing an indeterminate period of counselling at the Fairfield Facility, as to which there is simply no clear evidence, we do not think it possible to attribute to a 15-year-old boy, who was experiencing a very stressful situation, an adult’s knowledge of possible repercussions if he did not somehow find a way to return to Australia, defying his mother. As we will develop, a 15 year old who is in serious trouble and who has to leave his home cannot be expected to have an understanding of the nuances of such an arrangement, and an adult’s ability to make decisions.

Service of Apprehended Violence Order

[77] There was an issue in the lower court hearings about the service of an Apprehended Violence Order (AVO) on Mr Curtis. The Judges found that Mr Curtis was served with an AVO in Australia in late-2010 when he was at the Fairfield Facility, and saw this as supporting complicity in his non-return.^[48]
[78] The AVO shows Mr Curtis as a “defendant” and contains a “notice to defendant”. It sets out the details of the complainant’s statements about sexual offending and seeks mandatory orders which stop the defendant from assaulting or harassing her or engaging in other conduct which intimidates her. It sets out as additional orders sought that Mr Curtis must not reside at the premises that the complainant resides at or approach her.
[79] It was accompanied by a statement of service document, signed by a member of the police. The box indicating service in person is ticked, but so is the box stating that there was substituted service by other means. This is described in handwriting as follows: “Service via staff at Community Services Fairfield CSC”.
[80] There is a printed statement above the handwritten signature of the police officer who had delivered the document, stating that: “And at the time of service, I explained the nature and effects of the document to the person served.”
[81] On the most favourable interpretation for the Commonwealth of Australia, this indicates no more than service on a staff member at the institution, and an explanation to that person.
[82] Detective Senior Constable Potts deposed that the AVO was served on Mr Curtis and “thoroughly explained”. However, Detective Senior Constable Potts has no personal experience of those events. Rather, his assertion is based on Department of Community Services records. The only record before the Court is the AVO itself and the statement of service, which is ambiguous for the reasons that we have outlined. Mr Curtis denies ever having been served. In these circumstances, we do not consider there is sufficient evidence that Mr Curtis was ever served with, or told about, the AVO.
[83] Ms Hogan placed weight on the AVO as indicating Mr Curtis’ complicity. She contended that it established that Mr Curtis was aware of the charges and knew that non-prosecution was conditional upon his completing counselling. Even putting to one side the ambiguity as to whether Mr Curtis was served with the AVO, we are unable to see how it supports that conclusion. First, the document does not indicate that charges will be laid or that there are any conditions with which Mr Curtis must comply if he is not to be charged. All it does is, like a Protection Order in New Zealand, advise Mr Curtis that allegations have been made and that he must not contact or harass the complainant.
[84] The firm findings of the District Court and High Court, therefore, that there was “overwhelming evidence” to show that Mr Curtis was aware of the order overstated the position by a considerable margin.^[49] The evidence was only of service on staff at the place where Mr Curtis was living and it appears that any explanation was to the staff member, not Mr Curtis himself. There is no evidence that a staff member brought the order to the attention of Mr Curtis or explained its effect. Mr Curtis was pressed on whether he was served with the AVO in cross-examination. He had no recollection of being served with the order. Even if he had been, the document does not indicate that he will face charges unless he completes counselling.

Return on own volition

[85] Also relevant to the finding of complicity are the findings in both Courts that Mr Curtis could have returned to New Zealand on his own volition. In the District Court it was stated, “I also do not lose sight of the fact that he could have returned to Australia at any time to surrender himself voluntarily.”^[50]
[86] In the High Court it was said:^[51]

In addition, and as the Judge observed, Mr Curtis turned 16 years of age on 2 February 2011. He was free to return to Australia to surrender voluntarily at that point but has chosen not to do so.

[87] We are unable to agree with these statements. It was common ground that Mr Curtis left Australia and then stayed in New Zealand at the behest of his father and then his mother. Mr Curtis was a schoolboy, who proceeded to attend high school for the following two years. It can be assumed he had no access to money, other than from his mother, and indeed until February 2011 no ability to travel on his own without a parent. From January 2011 he was not in contact with his father from whom he heard nothing. He had no other family in Australia. In the circumstances, to attribute to him a freedom to obtain a passport, buy air-tickets and fly to Australia where he had no family home to go to, was plainly wrong.

Conclusion on complicity of Mr Curtis

[88] We have reached the view that the District Court and High Court were in error in finding Mr Curtis to be complicit in his non-return to Australia. The approach in both Courts was to treat Mr Curtis as an adult, and to fail to weigh that he was a 15yearold schoolboy in the care of his parents, whose actions had to be assessed with that in mind. For the reasons we have set out we interpret the facts differently. His parents controlled where he lived. These facts do not show complicity. In the next section of this judgment we refer to the differences between children and adults, their vulnerability and their susceptibility to pressure.

Youth

[89] As well as being relevant to the assessment of complicity in the delay, Mr Curtis’ youth is an important “circumstance of the case” in terms of s 8(1)(c) of the Act.
[90] The definition of a child in the United Nations Convention on the Rights of the Child (UNCROC) is “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.^[52]
[91] In New South Wales, persons under 18 are defined as children.^[53] In New Zealand, in the primary Act dealing with children and young people, the Oranga Tamariki Act 1989 (Children’s and Young People’s Well-being Act 1989), a child is defined as a person under the age of 14 years, and a young person as a person of or over the age of 14 years but under the age of 17 years.^[54] Mr Curtis was a child in Australia when the alleged offending took place, and in New Zealand terms a young person when he left Australia and stayed in New Zealand.
[92] It has been frequently said (in the context of sentencing) that in terms of judgment and ability to plan, consider and control, young people are significantly different to adults. In R v Slade this Court observed that adolescents do not possess either the same development level or cognitive or psychological maturity as adults.^[55] They have difficulty regulating their moods, impulses and behaviour, and they are more vulnerable than adults to peer pressure. In Churchward v R this Court stated:^[56]

There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

[93] This Court went on to observe “there is a growing body of scientific evidence on adolescent brain development that demonstrates that young people are significantly different to adults”.^[57]
[94] This Court referred to research by the New South Wales Department of Education and Training.^[58] The ability to plan, consider, control impulses and make wise judgments is the last part of the brain to develop.^[59] It was recognised in Churchward that the neurological factors stemming from youth can lead to a reduction in culpability of young people as compared to adults.^[60] For these reasons, both Australia and New Zealand have specific principles and processes for the processing of youth through the criminal justice system.
[95] Mr Hoskin for Mr Curtis submitted to us that because Mr Curtis is now 23, he has been prejudiced beyond the norm by the delay, having lost his ability to be processed and sentenced as a child in Australia. Ms Hogan submitted that we should accept, as the lower Courts did, that Mr Curtis would be able to call on the Australian equivalents to New Zealand’s legal principles, including youth justice principles, and that extradition in that regard produces no prejudice.
[96] Section 322 of the Oranga Tamariki Act provides specifically for the dismissal of a charge against a young person if the judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessary or unduly protracted. It seems there is no exact equivalent of that provision in New South Wales. However, Ms Hogan referred us to the Director’s Prosecution Guidelines (NSW), which state that the Australian Government has agreed to be bound by UNCROC. Guideline 21 provides:

Special considerations may apply to the prosecution of children. The longer term damage which can be done to a child because of an encounter with the criminal law early in his or her life should not be underestimated and consequently in some cases prosecution must be regarded as a severe measure with significant implications for the future development of the child concerned. Whilst each situation must be assessed on its merits, frequently there will be a stronger case for dealing with the situation by some means other than prosecution, such as by way of caution or youth justice conference under the Young Offenders Act 1997. On the other hand, the seriousness of the alleged offence, harm to any victim and the conduct, character and general circumstances of the child concerned may require that prosecution be undertaken.

(Emphasis added.)

[97] Art 40.1 of UNCROC provides:

States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

(Emphasis added.)

[98] Clause 40.2(b)(iii) provides that every child alleged to have infringed the penal law has the following guarantee:

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians.

(Emphasis added.)

The provision for the matter to be determined “without delay” has plainly not been followed here.

[99] The evidence filed by the Commonwealth of Australia was to the effect that Mr Curtis would be sentenced according to the law in Australia and the maximum penalty he would face would not change because of the delay in prosecution. He would be tried and sentenced in an adult court, but the principles relating to the sentencing of children would still be required to be taken into account in assessing his culpability, even though Mr Curtis is now an adult.

[100] Mr Hoskin submitted that, but for the delay, s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) would have applied to Mr Curtis on sentencing. Section 6 provides:

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
[101] Mr Hoskin submitted that the delay, during which time Mr Curtis has reached adulthood, has created uncertainty as to whether an Australian court would apply s 6 to him on sentencing. However, there is evidence from an Australian prosecutor, Ms Graczol, that the sentencing judge will still be required to consider and apply the principles set out in s 6, given that Mr Curtis was a child at the time the alleged offences were committed. We accept that Mr Curtis’ youth when he offended would be given proper recognition in Australian courts. Nevertheless, some of the s 6 considerations that were available as factors in mitigation of a lengthy custodial sentence will no longer be available, in particular (i) that it is desirable to allow the education or employment of a child to proceed without interruption; (ii) that it is desirable wherever possible, to allow a child to reside in his or her own home; and (iii) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties. These principles would have had application if Mr Curtis was prosecuted and sentenced promptly as a young person still living at home and completing his schooling. Given the delay, and Mr Curtis’ transition into adulthood, it would not appear those principles could be invoked by Mr Curtis anymore.

Comparisons with other cases

[102] We accept that other cases must be approached with caution, and that ultimately the s 8(1)(c) discretion is very fact-specific. However Kakis and other English decisions are regularly recognised as containing authoritative propositions in New Zealand, and we have been referred to a considerable number of other cases by counsel, some of which we accept have some relevance.^[61]
[103] It has been noted that the discretionary refusal of surrender between Australia and New Zealand is not unheard of. We have been referred to two Australian cases, which turn on the existence of representative charges in New Zealand, where extradition to New Zealand has been refused.^[62]
[104] We have not been referred to any extradition case in the Commonwealth which deals with the departure of a child from a jurisdiction where the child is alleged to have offended, and after a lengthy delay, prosecution as an adult. However in this regard Ms Hogan placed reliance on the decision of F(B) v Director of Public Prosecutions, concerning a stay of prosecution.^[63]
[105] This was a decision of the Supreme Court of Ireland, on appeal from a High Court decision refusing judicial review. The appellant was a child at the time of the alleged crime, aged 14. The offences were oral and anal rape with sexual assault upon two girls aged seven and six. The offending occurred in Ireland in April/May 1995. The appellant was first interviewed in June and August 1995. In September 1995 he openly moved to London with his mother. Around March 1996 his mother was advised by the police that they would be pursuing the appellant and that an application for that purpose would be made to the local District Court in London.
[106] On 22 November 1996 the appellant’s family were told that an application for extradition had been made. The appellant was ultimately delivered to Ireland on 12 August 1998 and then brought before the District Court. It appears from the Irish report that there was no contested extradition hearing in London. Ultimately it was held in the Supreme Court that although prejudice was not proved, the proceedings should be stayed. The Court held:^[64]

To some extent by analogy, I also take the view that in the case of a criminal offence alleged to have been committed by a child or young person as in this case there is a special duty on the State authorities over and above the normal duty of expedition to ensure a speedy trial, having regard to the obvious sensitivities involved.

[107] It was held that the period of two years and nine months ought not to have been allowed to elapse. There was altogether unnecessary delay in relation to the extradition. The appeal was allowed and there was an injunction against the Irish authorities from proceeding with the prosecution.
[108] Ms Hogan relied on this case as showing that extradition does still take place when there has been delay. However, we would make two observations. First, for whatever reason, extradition does not appear to have been contested in England. Second, it is significant that the Irish Supreme Court considered a delay of approximately half the duration of the delay in this case as warranting a stay, and placed particular emphasis in that regard on the alleged criminal offending having been committed by a child or young person. The Court saw, as we do, that where a child is involved there is a special duty on state authorities over and above the normal duty of expedition to ensure a speedy trial.
[109] While the case indicates that there is a real possibility that an Australian court may stay the proceeding against Mr Curtis in any event, we do not see that factor as counting strongly against the exercise of the s 8(1)(c) discretion in this case. For all the reasons that we have outlined, the very act of extradition, which involves taking Mr Curtis away from his home, family and partner to what is likely to be imprisonment on remand in Australia, is a most significant hardship on its own, even if there will ultimately be a stay.
[110] In R on the application of Cepkauskas v District Court of Marijampole Lithuania extradition was refused under the equivalent of s 8(1)(c) on the basis of oppression.^[65] The appellant was 19 at the date of the alleged offences, which involved four charges of stealing motor vehicles and one charge of intentionally kicking and hitting two different men. Thirteen to 14 years went by before the extradition proceedings were commenced. Extradition was held to be oppressive. It was observed by Burnett J:^[66]

It is proper in this case, in my judgment, to conclude that the appellant has truly been lulled into a false sense of security as a result of the inaction on the part of the Lithuanian authorities. The offences are described by the Lithuanian authorities as of “average gravity” so far as the car thefts are concerned, and “minor gravity” so far as the other alleged offences are concerned. This is not one of those cases in which the very serious nature of the alleged offences weighs heavily against a finding of oppression.

[111] He then referred to “the additional factor of the appellant’s youth at the time of the commission of the alleged offences in 1997”.^[67] We accept that the charges in that case were less serious, but the observations on lulling the appellant into a false sense of security and inaction by the prosecuting authorities are relevant.
[112] In Steblins v Government of Latvia the High Court refused to intervene and exercise its discretion where the defendant had been 17 at the time of the offending in February 1996.^[68] However it was noted that the applicant, who was then 18, left Latvia deliberately breaking bail conditions without giving the authorities any clue as to his whereabouts. There was some delay before he was discovered to be in the United Kingdom. An extradition request was made in February 2001, but an arrest warrant was not issued until August 2005. The differences between that case and the present are obvious. The applicant was an adult when he left the jurisdiction and he left deliberately, in breach of his bail conditions.
[113] In Glowinski v Regional Court in Opole (Poland), extradition was declined.^[69] There had been a long delay and a particular period of delay that was the fault of the Polish authorities, which induced a false sense of security in the applicant.
[114] We have not found the Canadian decisions we were referred to helpful, as there are greater differences between the legislation in Canada and New Zealand than England and New Zealand.
[115] The present case can be clearly distinguished from the decision of this Court in Commonwealth of Australia v Mercer.^[70] Mr Mercer was an adult at the time the alleged offences were committed. The Commonwealth of Australia sought to extradite him on sexual charges concerning an underage complainant. Mr Mercer had previously been deported from Australia to New Zealand having served a sentence of imprisonment for sexual abuse of other complainants. Mr Mercer did not give evidence and the Court was not prepared to conclude that he believed he was not at risk of further prosecution after he was deported to New Zealand.^[71] The Court noted there was no evidence of any change in circumstances in the appellant’s life since deportation that would make his extradition oppressive.^[72]
[116] With these considerations and decisions in mind we turn to assess oppression in this case.

Assessment of oppression

[117] As we have set out, delay is relevant to the extent that, in all the circumstances, it has caused oppression,^[73] and the threshold to establish oppression is high.^[74]
[118] In Mercer this Court noted:^[75]

Of relevance to the present discussion is Lord Scarman’s observation [in Kakis] that the oppression limb was made out because of the passage of time conspiring “to induce in Mr Kakis a sense of security from prosecution”.

That case involved more than the mere passage of time; there was Mr Kakis’ brief return to Cyprus and the amnesty announcement (thereafter revoked as far as Mr Kakis was concerned).

[119] We consider that, as in Kakis, the delay here has induced in Mr Curtis a sense of security from prosecution. That delay has not been in any way induced by his actions, and is not his fault. We consider that there has been more than a mere passage of time in this case because Mr Curtis has progressed from childhood to being an adult. He has not made any efforts to conceal his whereabouts; he has lived openly and visited Australia. He has made an excellent life for himself as an adult in New Zealand, which will change radically should he be extradited.
[120] There is extensive evidence before us about how his extradition to Australia now will be very hard on him. If he is returned to Australia, his ability to have contact with his partner and family is likely to be limited. It was common ground before us that he is unlikely to get bail. He will likely go to prison on remand. We emphasise that this type of oppression is not uncommon in extradition cases, and on its own, if Mr Curtis had chosen to come to New Zealand as an adult, would not be a central factor. What makes it central here is that Mr Curtis did not decide to change jurisdictions, and has gone from being a child who was brought to New Zealand to being an adult in New Zealand.
[121] Since his return to New Zealand Mr Curtis has completed two years of further schooling and obtained his NCEA qualifications. Further, as we have set out, he is in a longterm relationship and has tertiary qualifications. He hopes to start a personal training business. All his family ties are in New Zealand. He has no family in Australia. There are strong expressions of support for him, from his mother, his grandmother and his aunt, outlining the hardship that he would suffer if he had to return to Australia.
[122] Ms Hogan pointed out that the raft of remedies available as a result of the delay will be open to Mr Curtis to pursue in Australia and, as we have set out, we accept that. At best he will be able to obtain a stay of all the proceedings on the basis of delay. In any event, if he was convicted he could ask for his youth at the time of the alleged offending and the lapse of time to be taken into account on sentencing. However, a stay of proceeding in Australia, if it were granted, would not assuage the oppression of Mr Curtis of being taken from his family and his relationship for an indeterminate time.
[123] There is a good deal of affidavit evidence confirming hardship to Mr Curtis should he be extradited. Dr Caleb Armstrong, a consultant psychiatrist, has stated that despite his excellent record, Mr Curtis has suffered from major depressive episodes of moderate severity. It is likely that his mood would deteriorate further in the context of remand in custody in another country far from his usual supports and opportunities for work, social contact, and recreation. In his first report Dr Armstrong said that there was a significant risk that Mr Curtis might become more depressed, and an elevated attendant risk of suicide could ensue. The family history of the recent suicide of his father added a notable risk factor for him.
[124] In a more recent affidavit Dr Armstrong has revised his view of Mr Curtis’ suicide risk. At the time Dr Armstrong did his first assessment Mr Curtis was experiencing a depressive episode, but is now showing signs of improvement and recovery. Dr Armstrong remains of the view, however, that if Mr Curtis was extradited and put on remand he is likely to be at high risk of completed suicide. The fact that there would be equivalent mental health services available to Mr Curtis in Australia as there are in New Zealand was not the point. It would be the fact of him being in Australia rather than New Zealand that would exacerbate his mental health issues.
[125] The District Court Judge, in dealing with Dr Armstrong’s evidence, criticised him for not, if there was a risk of suicide, taking immediate palliative steps to prevent suicide.^[76] The Judge considered that Dr Armstrong’s “apparent lack of urgency” in taking those steps “undermine[d] the seriousness of the risk he adverted to”.^[77] This criticism of Dr Armstrong seems to us to have been unfair. The Doctor did obtain Mr Curtis’ agreement for him to write to his general practitioner to outline the situation and his need for treatment. Dr Armstrong has since pointed out that there is a strong ethical imperative to separate the role of a treating doctor from the role of an expert witness. Moreover, Dr Armstrong did not suggest that there was an immediate risk of suicide.
[126] The Judge also, in rejecting Dr Armstrong’s evidence, commented:^[78]

However, it also occurs to me that if Mr Curtis were to adopt an alternative approach and consent to extradition, then either the New South Wales police or the DPP’s office might agree to allowing him bail in Australia pending trial, or his prospects of convincing a New South Wales District Court of his suitability for bail would be significantly improved.

[127] This seems to us to be the wrong way to approach the s 8(1)(c) discretion. It is no answer to oppression if extradited to say that voluntary surrender could fix it. That would still leave all the other stresses of Mr Curtis having to leave his family and relationship.
[128] However, we do agree with the Judge’s finding that Mr Curtis’ situation, in terms of family and support network, and in terms of mental health issues, would not on its own be sufficient to make his extradition oppressive. But equally these matters are not to be put to one side. They must be considered in the round, with the other factors we have traversed indicating oppression arising from the delay.

[129] These factors, indicating oppression, can be summarised as follows:

• (a) There was at least five years of delay, which must be attributed to the Australian authorities and errors in the extradition process, and which were not the fault of Mr Curtis.
• (b) Mr Curtis came to New Zealand on the instigation of his father without any input into that decision, and stayed in New Zealand on the wishes of his mother, without having any input into that second decision. He was not complicit in the delay. In the same way as in Kakis, Mr Curtis has been induced into a sense of security and has led and developed his life openly.
• (c) The effect of the delay is that he has been deprived of the opportunity to be dealt with in Australia as a 14 or 15-year-old youth. Had he been dealt with then his chances of avoiding a custodial outcome would have been better than now, because the mitigating factors relevant to sentence arising because he actually was a child at the time of sentencing would have been available. Today he will be sentenced as an adult, albeit his culpability will be assessed taking into account that the offending took place when he was a child.
• (d) Since leaving Australia, Mr Curtis has gone from being a child to an adult. He has gone through the whole formative process of qualifying himself and establishing a career and permanent relationships in an exemplary manner. Even if he had been sentenced to prison if charged in 2011, he would likely have completed any sentence by now and been discharged and developed into an adult with a career. In contrast he now faces the opposite; the relationships and career that he has developed as he has moved from childhood to adulthood will be materially disrupted, if not destroyed, by his extradition.

(e) This oppression would not be remedied if there were a stay hearing in Australia. There is nothing before us to indicate that a stay would certainly be granted, and the Australian prosecutor will strongly oppose it. Indeed, the affidavits filed by the Commonwealth of Australia say that bail will be opposed and that the delay will have a neutral effect on sentencing.^[79]
[130] We are satisfied that, given the circumstances, stemming as they do from the delay, it would be oppressive to extradite Mr Curtis. Thus both of the questions of law are answered “yes”.^[80] Under s 307 of the Criminal Procedure Act 2011 this Court may exercise any power that the High Court could have exercised if it had allowed the first appeal. The High Court would have had the power to make any order it considered just under s 300(1)(e) of the CPA. We allow the appeal and declare that Mr Curtis is not eligible for extradition.
[131] The high threshold has been crossed, and Mr Curtis has satisfied us that this is one of these rare cases where surrender to Australia should be restricted under s 8.

The second appeal — judicial review of the decision under s 48(4)

[132] The District Court Judge, having found that none of the restrictions in s 8 applied, considered whether there were compelling or extraordinary circumstances of the person making it unjust or oppressive to surrender him. The Judge determined that there were no such circumstances and refused to refer the case to the Minister under s 48(4).^[81]
[133] If it were not for our s 8(1)(c) decision, we would refer the case to the Minister under s 48(4)(a)(i). However given our decision under s 45(4) that Mr Curtis is not eligible for surrender because he has satisfied the Court that a discretionary restriction on his surrender applies under s 8, no referral is necessary. As an outcome of this appeal Mr Curtis will not be extradited. We do not need to consider referral under s 48(4)(a)(i).

Result

[134] The appeals in CA234/2017 and CA539/2017 are allowed.
[135] The questions of law set out at [5] are both answered in the affirmative.
[136] The District Court decision that Mr Curtis is eligible for surrender, and the surrender order and warrant for detention issued by the District Court, are quashed.
[137] We declare under s 45(4) of the Extradition Act 1999 that Mr Curtis is not eligible for surrender.

Costs

[138] We were left unclear as to the positions of the parties on costs at the conclusion of the hearing. If Mr Curtis seeks costs he is to file a memorandum of no more than five pages by 18 January 2019. The Commonwealth of Australia is to file a memorandum in reply by 25 January 2019.

Solicitors:
Crown Solicitor, Manukau for Commonwealth of Australia

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^[1] Commonwealth of Australia v Curtis [2016] NZDC 17157 [District Court decision].

^[2] Curtis v Commonwealth of Australia [2017] NZHC 624 [High Court decision].

^[3] Curtis v Commonwealth of Australia [2018] NZCA 22.

^[4] Curtis v District Court at Manukau [2018] NZCA 23.

^[5] CA234/2017 is the appeal on questions of law concerning s 8(1)(c). CA539/2017 is the appeal against the refusal to grant judicial review.

^[6] Extradition Act 1999, s 41.

^[7] Mailley v District Court at North Shore [2013] NZCA 266 (footnotes omitted).

^[8] Commonwealth of Australia v Mercer [2016] NZCA 503 (footnotes omitted).

^[9] District Court decision, above n 1, at [31]–[33].

^[10] At [34].

^[11] At [37].

^[12] At [41].

^[13] At [42].

^[14] At [43].

^[15] At [65].

^[16] At [53].

^[17] At [65].

^[18] At [65].

^[19] At [66].

^[20] Reproduced above at [32].

^[21] High Court decision, above n 2, at [28].

^[22] At [33]–[34].

^[23] At [38].

^[24] At [42], referring to Commonwealth of Australia v Mercer, above n 8, at [53].

^[25] At [51].

^[26] At [50].

^[27] At [55].

^[28] At [67].

^[29] See above at [29].

^[30] Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (HL). In the High Court it was observed in distinguishing Kakis that the English legislation is markedly different to the New Zealand Act because the courts in England have the power to determine whether a person should be extradited: High Court decision, above n 2, at [41]. However so do the New Zealand courts under s 45(4) of the Act.

^[31] Wolf v Federal Republic of Germany (2001) 19 CRNZ 245 (CA) at [34]; Commonwealth of Australia v Mercer, above n 8, at [33]; and Tukaki v Commonwealth of Australia [2018] NZCA 324 at [23].

^[32] Kakis v Government of the Republic of Cyprus, above n 30, at 782.

^[33] At 782–783.

^[34] Commonwealth of Australia v Mercer, above n 8, at [33].

^[35] Kakis v Government of the Republic of Cyprus, above n 30, at 790 (emphasis added).

^[36] Commonwealth of Australia v Mercer, above n 8, at [29]; and Tukaki v Commonwealth of Australia, above n 31, at [44].

^[37] Commonwealth of Australia v Mercer, above n 8, at [52].

^[38] Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979.

^[39] Commonwealth of Australia v Mercer, above n 8, at [52].

^[40] See for example Bieleski v Police HC Auckland AP286/86, 28 November 1986.

^[41] Kakis v Government of the Republic of Cyprus, above n 30, at 783.

^[42] At 785.

^[43] Commonwealth of Australia v Mercer, above n 8 (footnotes omitted).

^[44] Evidence Act 2006, s 18.

^[45] We note that, although it is not entirely clear from her affidavit, Mr Curtis’ mother appears to say that she did not learn of the allegations against Mr Curtis until his arrival in New Zealand.

^[46] District Court decision, above n 1, at [40], referred to in High Court decision, above n 2, at [22].

^[47] High Court decision, above n 2, at [27].

^[48] District Court decision, above n 1, at [37]; and High Court decision, above n 2, at [36].

^[49] District Court decision, above n 1, at [37]; and High Court decision, above n 2, at [35]–[36].

^[50] District Court decision, above n 1, at [40].

^[51] High Court decision, above n 2, at [27].

^[52] United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art 1.

^[53] Children (Criminal Proceedings) Act 1987 (NSW), s 3(1).

^[54] Oranga Tamariki Act 1989, s 2.

^[55] R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 (CA) at [43].

^[56] Churchward v R [2011] NZCA 531 at [77(a)] (footnotes omitted).

^[57] At [79].

^[58] At [80].

^[59] At [80(a)].

^[60] At [81].

^[61] Kakis v Government of the Republic of Cyprus, above n 30.

^[62] Bannister v New Zealand [1999] FCR 362; and Newman v New Zealand [2012] FCAFC 133, (2012) 294 ALR.

^[63] F(B) v Director of Public Prosecutions [2001] IESC 18, [2001] 1 IR 656.

^[64] At [29].

^[65] R on the application of Cepkauskas v District Court of Marijampole Lithuania [2011] EWHC 757 (Admin).

^[66] At [32].

^[67] At [35].

^[68] Steblins v Government of Latvia [2006] EWHC 1272 (Admin).

^[69] Glowinski v Regional Court in Opole (Poland) [2017] EWHC 578 (Admin).

^[70] Commonwealth of Australia v Mercer, above n 8.

^[71] At [60]–[61].

^[72] At [60].

^[73] At [51].

^[74] At [52].

^[75] At [55].

^[76] District Court decision, above n 1, at [91].

^[77] At [91].

^[78] At [93].

^[79] These were on the basis that Mr Curtis had “directly contributed” to the delay.

^[80] See above at [5].

^[81] At [106].