Mailley v District Court at North Shore [2014] NZHC 2816; [2015] 2 NZLR 567 (12 November 2014)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1761 [2014] NZHC 2816

BETWEEN	MARTIN JAMES MAILLEY Applicant
AND	THE DISTRICT COURT AT NORTH SHORE First Respondent
AND	THE NEW ZEALAND POLICE Second Respondent

Hearing:	4 November 2014
Appearances:	F M R Cooke QC for Applicant J C Gordon QC, K E Hogan & R Thomson for Second Respondent
Judgment:	12 November 2014

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on 12 November 2014 at 4.45pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Powerlaw, Wellington for Applicant

Crown Solicitor, Auckland for Second Respondent

MAILLEY v THE DISTRICT COURT AT NORTH SHORE [2014] NZHC 2816 [12 November 2014]

[1] In issue on this application for judicial review is the validity of a decision given by Judge Pippa Sinclair in the District Court, Auckland, on 20 June 2014, under the Extradition Act 1999, in which she ordered the surrender to the Commonwealth of Australia of Martin Mailley, a New Zealand citizen, accused of fraud offences in the State of Queensland.

[2] In that decision the Judge first substituted as applicant for the New Zealand police the Commonwealth of Australia. She also declined to refer to the Minister of Justice, under s 48(4)(a)(ii) of the Extradition Act 1999, the issue of surrender. She concluded, after reviewing the circumstances that she considered personal to Mr Mailley, as opposed to those of the case generally, that it would not be unjust or oppressive to extradite Mr Mailley.

[3] Ultimately in issue on this application is the validity of the surrender order the Judge made, dependent as it was on the validity of those two prior decisions. Also in issue is whether, if I do consider that she made any invalidating error under s 48(4)(a)(ii), this is one of those exceptional cases where I should exercise that discretion myself and refer the case to the Minister.

[4] There is a prior issue. It is this. To what extent, if at all, are the grounds on which Mr Mailley challenges the Judge’s surrender order open to him, having regard to the decision of the Court of Appeal, dated 28 June 2013, under which the case was remitted to the District Court?

Evolution of proceeding

[5] On 21 June 2002 Mr Mailley, then living in Australia, was charged with 12 offences in the state of Queensland, six offences of fraud and six of attempted fraud. Over two and a half years he was alleged to have obtained A $195,220 and to have attempted to obtain A $1,764,000. (The restitution claimed is significantly less, A$73,223.)

[6] After Mr Mailley had been committed for trial, he left Queensland for New Zealand under a false passport, in breach of his bail, and on 30 March 2005 a warrant for his arrest was issued by a Judge of the District Court, Queensland, sitting

in Beenleigh. On 14 March 2005 that warrant was endorsed by Judge Morris in the

District Court, North Shore, under Part 4 of the Extradition Act 1999. On 2 July

2008 Mr Mailley was arrested.

[7] On 11 September 2008,¹ after a hearing in the District Court, North Shore, lasting four days, Judge Hubble determined, under Part 4, that Mr Mailley was eligible for surrender. He did not accept that the applicant under Part 4 had to be the Commonwealth of Australia. Part 4, he held, envisaged that the New Zealand police manage the extradition process. He held the Queensland arrest warrant to be valid.

[8] In that decision the Judge did not resolve three further issues which Mr Mailley then claimed made him ineligible for surrender: whether the Queensland prosecution had been brought in good faith, whether there had been undue delay, and whether the warrants under which he had been detained in New Zealand were invalid. (John Hansen J had held these warrants invalid on their face, when on 17

December 2008 he granted to Mr Mailley, who had by then been in custody for six months, a writ of habeas corpus.) As to these Mr Mailley carried the onus.

[9] On 17 March 2010, the date on which Mr Mailley was to advance his grounds for ineligibility, his then counsel said that Mr Mailley did not wish to pursue them. On that basis the Judge made an order for Mr Mailley’s surrender; a decision which Mr Mailley then challenged by way of appeal in point of law and by application for judicial review.

[10] On 12 April 2011² Ellis J held that the extradition process, under Part 4, had been duly commenced by the issue of the Australian arrest warrant, endorsed in New Zealand; a process in which the New Zealand police, represented by the Crown Solicitor, Auckland, acted as intermediary. She found no fatal deficiency in the warrants of detention and concluded, in the round, that Mr Mailley had not suffered

_{any substantial injustice. He thus remained subject to the surrender order.}

¹ _{New Zealand Police v Mailley DC North Shore CRI-2000-063-544086, 11 September 2009.}

² Mailley v New Zealand Police HC Auckland CRI-2010-404-229; Mailley v District Court at

North Shore & Anor CIV-2010-404-647, 12 April 2011.

[11] On 28 June 2013 the Court of Appeal quashed the surrender order. It held that, while extradition under Part 4 is initiated by endorsed arrest warrant, it remains a state to state process. The correct applicant was the Commonwealth of Australia, but that was a technical issue. It confirmed that Mr Mailley was eligible for surrender. It remitted the case to the District Court ‘solely for the purposes of considering whether the case should be referred to the Minister of Justice under s

48(4)(a)(ii) because of Mr Mailley’s health.’³

DECISION UNDER REVIEW

[12] In her decision, given on 20 June 2014, that Mr Mailley now seeks to have set aside, the Judge held that the applicant’s identity was a ‘technical issue’, relying on the Court of Appeal’s description of it. She substituted the Commonwealth of Australia for the New Zealand police solely because she understood that to be what the Court of Appeal thought desirable in the interests of accuracy.

[13] In order to decide the issue formally remitted to the District Court by the Court of Appeal, the Judge heard evidence over two days from two psychiatrists, who had treated Mr Mailley, Dr Mendel and Dr Fraser, and from his general practitioner, Dr Whittaker and a psychiatrist for the Crown, Professor Mellsop. She also had affidavit evidence from a Queensland psychiatrist, and from a medical practitioner there, as to the custodial and secure hospital facilities for a person with Mr Mailley’s spectrum of risks.

[14] In then declining to refer Mr Mailley’s case to the Minister of Justice under s 48(4)(a)(ii), the Judge held, primarily, that Mr Mailley’s state of health did not render his surrender unjust or oppressive.

[15] Mr Mailley, the Judge said, had suffered a myocardial infarction in 2005, resulting in the implant of a stent. But he had recovered reasonably well and his heart condition had not substantially worsened since. She did not consider his heart condition, standing alone, a compelling or extraordinary circumstance rendering his

_{extradition unjust or oppressive.}

³ Mailley v District Court at North Shore & Anor [2013] NZCA 266 at [70].

[16] The Judge accepted that, as a result of suffering a significant head injury when he fell from a height aged 15, Mr Mailley probably suffered bipolar affective disorder; a diagnosis advanced by Mr Mailley’s treating psychiatrists, Dr Mendel Dr Fraser, but contested by the Crown’s psychiatrist, Professor Melsop. All four agreed, and the Judge held, that he certainly suffered a significant personality disorder. But, she held, these disorders did not constitute a compelling or extraordinary circumstance making extradition unjust or oppressive. He would be able to be cared for adequately in Australia.

[17] The Judge accepted that Mr Mailley’s heart condition and his mental and emotional disorders were inherently linked and that one could exacerbate the other, but she held that this linkage did not elevate the two together to an extraordinary or compelling circumstance. She then considered whether his documented risk of suicide might qualify.

[18] In September 2009, the Judge accepted, Mr Mailley had made a documented suicide attempt and, while that was then attributed to a domestic dispute, she also accepted that this might not be the sole reason. However, she found telling that there was no reference then to the impact of extradition. (Mr Mailley was admitted to hospital on 7 September 2009, shortly after the eligibility hearing concluded on 1

September 2009, and before the Judge gave his decision.) The Judge did accept that in February 2011 he had made a second documented attempt and that this had been related to the threat of extradition.

[19] The Judge did not accept unreservedly Mr Mailley’s claim to have attempted suicide numerous times before. His estimates had varied too widely. She noted that he had not attempted suicide when in custody for nine months in Queensland, for an unrelated offence, before absconding. Nor had he made any attempt when in custody in New Zealand for six months, before being released on 17 December

2008. (She did not accept Dr Mendel’s evidence, standing alone, that he had attempted suicide on that second remand.) She noted that he had not attempted suicide since 2011, despite this continuing proceeding.

[20] The Judge concluded that Mr Mailley was at risk of further mental health relapses, if in a situation of inducing stress, and that his suicidal ideation might derive from his mental personality disorders. However, she held, this present proceeding was one source of stress for him only. Also that his disorders were not so severe as to deprive him of choice. Even his statements that he would commit suicide, if extradited, confirmed he retained the ability to choose.

[21] The Judge accepted that, when Mr Mailley’s mood became less stable, so too did his personality and his impulsivity increased. But lithium calmed him and the evidence from Australia led her to conclude that he was likely to be prescribed lithium, if in custody there, more especially because of his declared suicidal intent. She did not accept, in the absence of evidence, that he could not take lithium because that might lead to renal failure.

[22] For these reasons the Judge held that Mr Mailley’s risk of suicide, or more precisely any increase in that risk if he were extradited, was not a compelling or extraordinary circumstance requiring her to consider whether, on that account, it would be unjust or oppressive to order his surrender. She elected, however, to deem that risk, or rather that increased risk, a qualifying circumstance in order to decide whether surrender would be unjust or oppressive, taking into account four further factors on which Mr Mailley by then relied. The Crown contended that these were outside the scope of the remitted issue. The Judge considered them nevertheless.

[23] At the hearing before her, Mr Mailley contended that it would also be unjust or oppressive to order his surrender because: (i) the offences with which he was charged were not of the most serious order; (ii) they were offences alleged to have been committed in Queensland between 1999 – 2002, at least 11 years earlier; (iii) the interests of justice had already been met by his time in custody in Australia before he absconded and that in New Zealand afterwards; (iv) the effect that extradition would have on his wife and child.

[24] The Judge held that she could not consider the first two. They were not, as s 48(4)(a)(ii) requires, ‘circumstances of the person’. Both were ‘circumstances of the case’, but they had not been invoked under s 8(1). They could only be

reconsidered under s 48(4)(a)(i), but that was beyond the scope of the issue remitted to the District Court by the Court of Appeal.

[25] The Judge held that, whether or not the interests of justice had been met by Mr Mailley’s time on remand was a circumstance under s 48(4)(a)(i), it did not come under s 48(4)(a)(ii). The impact of remand on Mr Mailley, himself, was a personal circumstance, but was neither compelling nor extraordinary. It was a natural consequence of his own choices and actions and of the extradition process.

[26] The Judge held that the impact on Mr Mailley’s wife and child did not come under s 48(4)(a)(ii). It was too prescriptively expressed to be enlarged to take into account those interests, even on the principle that statutes are to be interpreted consistently, so far as that is possible, with New Zealand’s international obligations.

ISSUES ON REVIEW

[27] On this review Mr Mailley contends, firstly, that the Judge acted with procedural impropriety in substituting the Commonwealth of Australia as applicant. Neither the New Zealand police, nor the Crown Solicitor, had advised the Commonwealth of the health and other grounds on which Mr Mailley contended it would be unjust or oppressive to extradite him. Nor had the Commonwealth confirmed it still wished to pursue extradition.

[28] Secondly, he contends, the Judge misunderstood and misapplied s 48(4)(a)(ii). To assess whether it would be unjust or oppressive to extradite him, she had to assess whether each relevant circumstance was extraordinary or compelling against that ultimate criterion. She had to assess all the circumstances that were relevant, not just those strictly personal to him. She had to assess any relevant circumstances, even if they arose under another provision. She had to assess them in their totality, and not just singly. She had also to take into account, consistent with New Zealand’s international obligations, the rights of his wife and his child.

[29] On those two grounds, singly or together, Mr Mailley seeks an order quashing the Judge’s decision and an order setting aside the surrender order she

made or an order referring the matter to the Minister of Justice. He contends that there is no call to remit the case to the Judge to reconsider whether to make one or the other of those two latter orders. The evidence the Judge received, he contends, establishes conclusively that it would be unjust or oppressive to extradite him.

[30] These then are the three issues I have to resolve on the face of the application. But, as I said at the outset, there is a prior issue, which the Judge noted but did not resolve definitively. It is whether the two grounds on which Mr Mailley contends that the surrender order was invalid, because she refused to refer the case to the Minister under s 48(4)(a)(ii), lie within the scope of the issue remitted to the District Court; and that inevitably extends to whether he is entitled to the exceptional affirmative remedy he seeks.

FIRST ISSUE - IDENTITY OF APPLICANT

[31] In substituting as applicant the Commonwealth of Australia for the New Zealand police, the Judge accepted that the fact that the Commonwealth had not transmitted to New Zealand the Queensland’s arrest warrant, as the Court of Appeal assumed, might mean that the Commonwealth was not strictly the ‘appropriate party’.

[32] The Judge nevertheless held to the Court of Appeal’s description of this issue as a ‘procedural technicality’. She also held that Mr Mailley had not been prejudiced. She saw no need, as Mr Mailley then contended, for the Commonwealth to confirm before she gave her decision that it wished still to pursue his extradition. She declined therefore to dismiss the proceeding on this first distinct ground.

[33] Whether in this the Judge was correct turns on what significance the Court of Appeal gave to its understanding that, while under Part 4 a warrant issued in Australia and endorsed in New Zealand is deemed a request for extradition, the process as between Australia and New Zealand remains state to state and ‘the request to the New Zealand police comes through the national Australian authorities, not

_{directly from the state or territory involved’.}⁴

⁴ At [39].

[34] The evidence at the initial first instance hearing before Judge Hubble was that the Commonwealth had not played any part in the transmission of the Queensland arrest warrant, and never did so. The Queensland warrant was transmitted by the state police to a New Zealand police officer stationed in Australia to liaise with Australian police forces, and he transmitted it to Interpol, Wellington, which in turn assigned it to the Crown Solicitor, Auckland.

[35] Also, Mr Mailley contends, in declining to have the Commonwealth confirm that it did wish to pursue his extradition, knowing why he contended that to be unjust or oppressive, the Judge ignored the right the Court of Appeal gave him to require that to happen. The Court, when remitting the request issue to the District Court, also held that the Commonwealth ought only to be substituted as applicant ‘if Mr Mailley seeks such an amendment’.

[36] These questions turn finally on whether the Court of Appeal concluded that the identity of the applicant was ‘technical’, because it assumed that the Commonwealth had already effectively endorsed extradition, or because it considered the issue to be technical when set against the statute; and also what the Court meant when it allowed Mr Mailley to seek to have the Commonwealth substituted.

COA decision

[37] In its decision the Court of Appeal described this threshold issue, as it by then been taken for Mr Mailley, in this way:⁵

Should the proceedings have been brought by the state seeking extradition (either the Commonwealth of Australia or the State of Queensland) rather than the New Zealand police and if so has the error prejudiced Mr Mailley?

[38] The Act itself, the Court said, does not expressly state who the applicant must be.⁶ To answer that question, therefore, the Court described the scheme of Part 4, set

_{against that of the Act as a whole. It also considered whether Mr Mailley had}

⁵ _{At [30](a).}

⁶ At [32].

suffered any injustice as a result of the New Zealand police having been named applicant.

[39] The Court began by surveying the statutory framework and there described extradition between Australia and New Zealand under Part 4 as a ‘special procedure’, which is ‘less formal and more streamlined’ than the full normal Part 3 procedure. This, it said, reflected ‘the high degree of comity between New Zealand and Australia’.⁷ The Court went on to say:⁸

Part 4 provides that where a warrant for the arrest of a person has been issued by a person having authority to do so in Australia, it can be endorsed by a District Court Judge in New Zealand. This process is known as a

‘backed warrant’. Once endorsed, the warrant authorises the New Zealand police to arrest the person sought to be extradited and bring them before the District Court to determine whether they are eligible for surrender ...

[40] Later, when speaking about the issue itself, the proper identity of the applicant, the Court added:⁹

It is clear that the backed warrant process is essentially a process involving co-operation between the police authorities of the requesting jurisdiction and of New Zealand. To give effect to the Part 4 process, the New Zealand Police must exercise powers in a similar way to the way they would in relation to a New Zealand warrant. The court application will be initiated by the Crown Solicitor in the relevant area.

[41] The Court said also that the Act as a whole contemplates that, even under Part

4, extradition is a state to state process. It took especial account of s 99, which governs competing requests by two or more states regardless of whether they are made under Part 3 or Part 4.¹⁰ Later the Court also saw the need for the Commonwealth to be identified as the applicant under Part 4 as:¹¹

a proper recognition that the New Zealand Police and the Crown Solicitor are acting on behalf of the Part 4 country in relation to a unique statutory regime that differs from their roles in the prosecution of crime in New Zealand.

⁷ _{At [7].}

⁸ _{At [8].}

⁹ _{At [36].}

¹⁰ _{At [34], [35].}

¹¹ At [38].

[42] Ultimately, the Court accepted the Crown submission that ‘the fact that there is nothing in Part 4 indicating who the applicant should be shows that this was not seen as a significant issue by Parliament’.¹² The more important question, it held, was whether Mr Mailley had suffered any prejudice because the New Zealand police had been named as applicant.¹³

[43] Mr Mailley was by then contended to have three substantive interests in whether the Commonwealth should always have been the correct applicant: (i) if the proceeding had to be recommenced on that account his delay argument would strengthen; (ii) he would then be able to start afresh unencumbered by the history of

the case; (iii) he would obtain more complete discovery.¹⁴

[44] The first two interests, the Court held, did not involve any prejudice to Mr Mailley caused by the New Zealand police having been named applicant. They were benefits to him, if he succeeded in his argument that the Commonwealth ought in the first place to have been the applicant, and in that sense were circular.¹⁵ As to the third, the Court held that Mr Mailley had been accorded complete discovery:¹⁶

The material before us indicates the New Zealand Police made a request of the Australian Police and that disclosure of the documents received from Australia were subsequently made to Mr Mailley’s counsel by the Auckland Crown Solicitor.

Conclusions

[45] The Court of Appeal held that whether the proper applicant was the New Zealand police or the Commonwealth of Australia was ‘technical’, as a matter of law, because Part 4, in contrast to Part 3, does not prescribe any applicant. The Act as a whole, the Court said, made it desirable to name the Commonwealth as applicant in the interests of accuracy. It put that no higher.

[46] It was only when it said that, furthermore, that the Court referred to what it understood to be the consistent practice between Australia and New Zealand beyond

¹² _{At [35].}

¹³ _{At [40].}

¹⁴ _{At [41].}

¹⁵ _{At [42].}

¹⁶ At [42].

the regime Part 4 creates; and that cannot have any greater significance. The Court might have considered the identity of the applicant was more than technical, as a matter of fact, had Mr Mailley suffered any want of discovery. But he had not.

[47] When the Court stated that there was no need for the Commonwealth to be substituted, unless Mr Mailley wanted that to happen, it did not accord to him any ability to dictate terms. The opposite is the case. If Mr Mailley did not want the Commonwealth substituted, the New Zealand police were to remain the applicant. That apart, the Court did not constrain the Judge. She remained free to substitute the Commonwealth if she chose.

[48] Thus, I conclude, the Judge made no reviewable error when she declined to dismiss the proceeding on the ground that the New Zealand police was not the correct applicant. The Judge did not act with any procedural or other impropriety when she substituted the Commonwealth as applicant.

SECOND ISSUE - REFERENCE TO MINISTER

[49] The principal issue on this review remains whether, as Mr Mailley contends, the Judge misconstrued and misapplied s 48(4)(a)(ii), when declining to refer the case to the Minister of Justice, on the ground that it would be unjust or oppressive to extradite him, and when making instead a fresh surrender order.

[50] This issue, which turns finally on what s 48(4)(a)(ii) says, set against its purpose, and the statute as a whole, has first however to be set against the orders made or confirmed by the Court of Appeal under Part 4; and thus what was remitted to the District Court to decide.

COA decision

[51] The Court of Appeal, although it set aside the surrender order then extant, expressly confirmed that Mr Mailley was eligible for surrender; in this endorsing Judge Hubble’s decision under s 45, which had been confirmed by Ellis J on the appeal.

[52] In this the Court confirmed that Mr Mailley had been held rightly to be an

‘extraditable person in relation to an extraditable country’, and that the offences with which he was charged were ‘extraditable offences’.¹⁷ More critically, the Court also confirmed that Mr Mailley was eligible for surrender because he had not established that he was ineligible for surrender on any of the three grounds set out in s 8(1), which are discretionary restrictions on surrender.

[53] Mr Mailley, the Court held, had abandoned on advice the three bases on which he contended he was ineligible for surrender under s 8, and could not resile from that decision. The Court then reviewed itself, against the advice Mr Mailley had received from his then counsel, those three abandoned bases: lack of good faith on the part of the Queensland police, undue delay and injustice or oppression. It agreed with his then counsel’s assessment that none made him ineligible for

surrender.¹⁸

[54] The injustice and oppression ground remains pertinent on this review. It rested, the Court said, on Mr Mailley’s state of health, ‘a heart condition and post traumatic distress disorder as well as suicidal ideation’. His then counsel had thought this ground unpersuasive because Mr Mailley could be treated adequately in Australia. He had also thought that this ground standing alone was unlikely to make Mr Mailley ineligible for surrender. He had thus advised Mr Mailley to pursue on appeal his jurisdiction challenge on the ground that the New Zealand police could

not be the applicant.¹⁹

[55] As to this third asserted ground under s 8(1) the Court of Appeal said itself: ²⁰

As regards the health issues, it is well established following the decision of this Court in Wolf v Federal Republic of Germany that the personal circumstances of the alleged offender can come within the statutory phrase

‘all the circumstances of the case’, and so be relevant to a s 8 inquiry, only if there is a clear nexus between those personal circumstances and the issues of delay and good faith.²¹ Mr Mailley’s health issues in themselves could therefore never have resulted in a discretionary restriction under s 8.

¹⁷ _{Extradition Act 1999, s 45(2).}

¹⁸ _{Mailley v District Court at North Shore & Anor, above n 3, at [48].}

¹⁹ _{At [46].}

²⁰ _{At [48].}

²¹ Wolf v Federal Republic of Germany (2001) 19 CRNZ 245.

[56] By contrast, the Court said, Mr Mailley was on ‘stronger ground’ when he raised his health issues under s 48(4)(a)(ii) as a basis for referral to the Minister. As to that, the Court said, the issue posed for Mr Mailley on the appeal was this:²²

Have the proceedings miscarried because of the failure of the District and High Courts to consider whether Mr Mailley’s mental health problems warranted referral to the Minister under s 48(4)(a)(ii)?

[57] The Court began by saying that while personal circumstances are generally outside the scope of s 8, they might be relevant under s 48(4)(a)(ii);²³ an issue that his previous counsel had never considered even though they had access to his medical reports. Judge Hubble had seen Mr Mailley’s health only as an issue under s 8 but the Court said, following Wolf, that was plainly incorrect. Ellis J had not addressed it.

[58] Then, after reviewing Commonwealth of Australia v Brougham,²⁴ a decision of the District Court, the Court held that s 48(4)(a)(ii) is not confined to physical health. It extends to mental health and whether that state of health constitutes an extraordinary or compelling circumstance is a matter of fact and degree.²⁵

[59] The Court did not accept, as was by then contended for Mr Mailley, that the medical reports were so compelling as to make any further hearing unnecessary. It considered their strength overstated. Apart from one documented suicide attempt, other attempts were self reported. The one documented attempt, moreover, had been attributed to Mr Mailley arguing with his partner, not to the threat of extradition.²⁶

He had survived two periods of imprisonment. The Court said:²⁷

The Police should have the opportunity of being able to call its own expert evidence and to be able to cross-examine the report writers. The Police may also wish to call evidence about the mental health facilities in Queensland prisons.

[60] The Court considered whether it should itself decide this issue to avoid any further delay. It held that it had jurisdiction to do so on the appeal. But counsel then

²² _{Mailley v District Court at North Shore & Anor, above n 3, at [30](c).}

²³ _{At [49].}

²⁴ _{Commonwealth of Australia v Brougham [2009] DCR 753.}

²⁵ _{Above, n 1, at [63].}

²⁶ _{At [67].}

²⁷ At [67].

agreed that this was an issue better remitted to the District Court, and the Court acceded to that to avoid truncating Mr Mailley’s right of appeal.²⁸

Scope of remitted issue

[61] The issue the Court of Appeal remitted to the District Court was highly specific. It was:²⁹

solely for the purposes of considering whether the case should be referred to

the Minister of Justice under s 48(4)(a)(ii) because of Mr Mailley’s health.

[62] On a plain reading what the Court remitted for the District Court to decide, under s 48(4)(a)(ii), was whether Mr Mailley’s health issues were compelling or extraordinary and whether that made it unjust or oppressive to extradite him; and nothing more. That, moreover, corresponds with the related issue taken for Mr Mailley, as the Court defined it, and its own survey of the then available psychiatric evidence, and its initial instinct to decide this issue itself on the existing and any further such evidence.

[63] It follows, to my mind, that any challenge to the validity of the Judge’s decision must be confined to whether she made any error in assessing the remitted issue under s 48(4)(a)(ii). It cannot extend to issues that the Judge may have resolved, but which were not remitted to the District Court, unless she then made any error that invalidates her decision on the issue that was remitted to the District Court.

[64] To decide whether the Judge made any reviewable error in deciding the question remitted, and to set out my conclusions if the remit was wider than I understand it to be, I will begin by setting s 48(4)(a)(ii), and the function it serves, against the Act as a whole, particularly Part 4.

Principles of interpretation

[65] The fundamental principle of interpretation is, as s 5(1) of the Interpretation

Act 1999 says, simply this: ‘[t]he meaning of an enactment must be ascertained from its text and in the light of its purpose’. Section 5(2) enables the Court to take into

²⁸ _{At [68], [69].}

²⁹ At [70].

account any ‘indications provided in the enactment’. Section 5(3) confirms that even the way in which the statute is organised has a place in the analysis.

[66] This principle of interpretation, according to Burrows, has stood in New Zealand for over a century.³⁰ It calls for a balance to be struck between the text and the purpose, in which the latter is decisive. In 1992 Cooke P said that, in principle,

_{‘strict grammatical meaning must yield to sufficiently obvious purpose’.}³¹ _{That is so}

also where a provision is ambiguous or unclear.³² But a sensible balance must be struck. As the then chief parliamentary counsel, George Tanner QC, said in 2005,

_{‘text is enlarged by purpose, and purpose is constrained by text’.}³³

Object and scheme

[67] The Act must be interpreted against its objects, as these are set out in s 12. Essentially, those objects are to set in place extradition processes which answer the duty of New Zealand to respond to appropriate requests and, reciprocally, to promote New Zealand’s ability to make requests for extradition:³⁴

The object of this Act is to provide for the surrender of an accused or convicted person from New Zealand to an extradition country or from an extradition country to New Zealand, and in particular—

(a) To enable New Zealand to carry out its obligations under extradition treaties; and

(b) To provide a means for New Zealand to give effect to requests for extradition from Commonwealth countries; and

(c) To provide a means for New Zealand to give effect to requests for extradition from non-Commonwealth countries with which New Zealand does not have an extradition treaty; and

(d) To provide a simplified procedure for New Zealand to give effect to requests for extradition from Australia and certain other countries; and

³⁰ JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at

_203.

³¹ _{McKenzie v Attorney-General [1991] NZCA 105; [1992] 2 NZLR 14 at 17 (CA).}

³² Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR

_{767 at [24].}

³³ Tanner & Carter ‘Purposive Interpretation of New Zealand Legislation’, (paper presented to

_{Australian Drafting Conference, Sydney, August 2005) at [66].}

³⁴ Extradition Act 1999, s 12.

(e) To facilitate the making of requests for the extradition of persons to

New Zealand.

[68] Consistent with s 12, the Act prescribes two processes for extradition. The full and normal process in Part 3, and a simplified process governing extradition to Australia and some designated countries in Part 4. Under Part 3 the Court only decides whether a person is eligible for surrender. The Minister of Justice decides the issue of surrender. Under Part 4 the Court decides both of those issues, unless it considers that there are qualifying circumstances rendering surrender unjust or oppressive. It then refers that issue to the Minister to decide.

[69] This division of responsibility, between the District Court, in the first instance, and the Minister, is highly particular.³⁵ The Act allocates some powers both to the Court and the Minister; those as to the mandatory and discretionary restrictions on eligibility. It allocates some to the Court only; those going to eligibility. It allocates some to the Minister only; those that culminate in a residual general discretion to decline extradition.

[70] Critical to this present review is the division made under Part 4, which after an arrest warrant from Australia or another designated country has been endorsed, prescribes a potentially three phase process.

Part 4 – a three phase process

[71] First the District Court must decide under s 45 whether the person is eligible for surrender: whether he or she is an extraditable person, the requesting country is an extradition country, and the offences are extradition offences.³⁶ The Court must also decide whether the person is ineligible for surrender because one of the mandatory or discretionary restrictions on surrender under ss 7 and 8 apply; an issue as to which the person carries the onus.

[72] At the related original hearing in the District Court Mr Mailley did contend that he was ineligible for surrender on one or more of the discretionary grounds set

³⁵ Yuen-Kwok-Fong v Hong Kong Special Administrative Region of the People’s Republic of China

_{[2001] NZCA 174; [2001] 3 NZLR 463 at [28].}

³⁶ Extradition Act 1999, s 45(2).

out in s 8(1), only to abandon that claim, as the Court of Appeal later held, irrevocably. But s 8(1) remains pertinent. It says this:

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.

[73] If, as then happened in this case, the person remains eligible for surrender under s 45, despite any claim under s 8 or s 7 for that matter, the Court must under s

46 issue a warrant to detain him or her (though he or she will not be surrendered for at least 15 days after the issue of the warrant or the exercise of the rights to apply for a writ of habeas corpus or to appeal). Subject to that, s 47 requires the Court to issue a surrender order immediately, unless the case is referred to the Minister. Section 48 governs referral.

[74] Section 48(1) obliges the Court to refer a case to the Minister on grounds which do not apply in this case. Section 48(1)(a), for instance, requires referral where the person whose extradition is requested is a New Zealand citizen, but that is not so in the case of a request from Australia.³⁷ Section 48(4), by contrast, gives the Court a more general power and its nature and extent is pivotal to this review. It says this:

If—

(a) It appears to the court in any proceedings under section 45 that—

(i) Any of the restrictions on the surrender of the person under section 7 or section 8 apply or may apply; or

(ii) Because of compelling or extraordinary circumstances of the person, including, without limitation, those relating to the age or health of the person, it would be unjust or oppressive

³⁷ Section 48(3)(a).

to surrender the person before the expiration of a particular period; but

(b) In every other respect the court is satisfied that the grounds for making a surrender order exist,—

the court may refer the case to the Minister in accordance with subsection

(5).

[75] Under s 48(4)(a)(i), s 8(1) comes into play a second time even though it may not have been invoked successfully or at all as a restriction on eligibility. Section

48(4)(a)(i) is also curiously expressed when it says that s 8 does ‘apply or may apply’. If it does apply, it must have rendered the person ineligible for surrender and the need for referral ought never to arise. However, that is not an issue in this case. What is in issue is how s 48(4)(a)(i) and (ii) interrelate.

[76] Both culminate in the issue whether it would be ‘unjust or oppressive’ to order surrender. But s 8(1) requires that to be assessed having regard to ‘all the circumstances of the case’, and that must also be so equally under s 48(4)(a)(i). Section 48(4)(a)(ii), by contrast, calls for that to be assessed against the

‘circumstances of the person’. In contention is whether those categories of circumstance are fixed and mutually exclusive. Mr Mailley contends that they are not and the Crown contends that they are.

[77] If the Court does refer the case to the Minister under s 48(4), s 49 obliges the Minister to determine surrender in accord with his power of decision under Part 3, under which the Crown decides eligibility and the Minister surrender. Under Part 4, as under Part 3, the Minister must determine surrender in accord with ss 30(2) – (4), of which only s 30(3) is relevant to this review and to this extent:

The Minister may determine that the person is not to be surrendered if –

...

(b) it appears to the Minister that a discretionary restriction on the surrender of the person applies under s 8; or

..

(d) ... it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those

relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or

(e) for any other reason the Minister considers that the person should not be surrendered.

[78] The two specific germane grounds on which the Minister may decline surrender, those in s 30(3)(b) and (d), are identical to those under which the Court may refer the issue of surrender to the Minister under s 48(4). The third ground, that in s 33(e), confers on the Minister a general residual discretion extending beyond the prescribed grounds. That is significant in itself.

[79] The residual discretion confirms that each of the preceding prescribed grounds is discrete. It also confirms that, even where the Court must under Part 4 decide surrender, once it refers that issue to the Minister on the ground that it would be unjust or oppressive to extradite, the Minister retains a larger discretion. The Minister may decline surrender for reasons, which do not fit within the specified grounds, and may not meet the exacting tests they impose.

[80] Finally, it remains to mention, the sole right of appeal that the Act confers, that in s 68(1), is confined to the eligibility decision under s 45, and is in point of law only. If such an appeal succeeds that will also result in any surrender order under s 50 being quashed. There is no right of appeal, by contrast, from a s 48 refusal to refer a case to the Minister. Any challenge to that exercise of discretion, like any to any decision taken by the Minister, can only be by way of judicial review.

Injustice or oppression

[81] The decisive issue on this review is whether, as Mr Mailley contends, the words ‘unjust or oppressive’, as they appear in s 48(4)(a)(ii), are to be accorded their fullest natural meaning requiring the Court to consider any circumstance relevant, whether that is one of the qualifying circumstances specified, or is catered for by s

48(a)(i) or elsewhere, or not at all. Or whether, as the Crown contends, the opposite is the case.

[82] Mr Mailley contends that unless those words are given their full natural meaning s 48(4)(a)(ii) is rendered ineffective. The essential issue is, he contends, as

Lord Diplock expressed it in Kakis v Government of the Republic of Cyprus & Ors,³⁸ where the immediate question was whether there had been undue delay as a result of the passage of time, when he said this:

‘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 to 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.

[83] Thus, Mr Mailley contends in particular, it has to be inherent in any assessment whether extradition would be unjust or oppressive, how serious the offending charged is. If it is murder, for instance, that may be so serious as to overwhelm factors that would otherwise make extradition unjust or oppressive like a long history of mental illness, paranoid schizophrenia, and an alleged offence date 23

years before.³⁹ Conversely, even where death is in issue, that may not be as decisive

where the offence is one of dangerous driving causing death or injury.⁴⁰ The fact that the triviality of the offence charged is a restriction on surrender under s 8(1)(a), and thus under s 48(4)(a)(i), cannot exclude the relative seriousness of the offences charged being taken into account under s 48(4)(a)(ii).

[84] The Crown contends, by contrast, that in Kakis the words ‘unjust or oppressive’ were able to be read as widely as they were, because their context did not restrict them. Whether extradition was ‘unjust or oppressive’ was to be answered against ‘all the circumstances’. In the other cases on which Mr Mailley relied, the Crown also contends, the statute allowed greater room for latitude.⁴¹ Grounds on which surrender would be unjust or oppressive, though specified in separate sections, readily aligned.

[85] The Judge distinguished the English cases because, as has been said in earlier cases in this country, the statute there is materially different. Leaving that to one side, I am unconvinced that the English cases are useful analogies. The Court of

_{Appeal in this case remitted to the District Court, under s 48(4)(a)(ii), the issue}

³⁸ _{Kakis v Government of the Republic of Cyprus & Ors [1978] 2 All ER 634 at 638.}

³⁹ _{Hutton v Government of Australia [2011] EWHC 564 (Admin).}

⁴⁰ _{Re: Collin Davies [1998] COD 1.83.}

⁴¹ Extradition Act 2003 (UK), ss 82, 91.

whether Mr Mailley’s state of health made it unjust or oppressive to order surrender,

relying on its own earlier analysis in Wolf.⁴²

[86] In Wolf, where a non-treaty extradition request had to be determined under Part 3, the converse issue arose. The issue there was whether under s 24(4) the District Court should have ruled the appellant ineligible for surrender, not just because it was contended that there had been undue delay under s 8(1)(c), but on account of his personal circumstances. He had a family in New Zealand.

[87] The appellant there contended that s 8(1) had to be interpreted in an enabling and not limiting way consistent with s 6 NZBORA. The Court therefore had to have regard to ‘all the circumstances surrounding the extradition proceeding, including in particular the likely impact of extradition on the individual concerned’. How could the Court decide otherwise, whether the passage of time made extradition unjust or oppressive?

[88] The Court of Appeal resolved this issue quite simply by holding that the appellant could not invoke delay under s 8(1)(c), having entered New Zealand under a false name. It held, however, that the Courts below had been right to conclude that the phrase ‘all the circumstances of the case’ in s 8(1) necessarily excluded, generally speaking, those of the person. The Court held that ‘all the circumstances of the case’ are not to be understood in a ‘wide textured’ way.⁴³ They can only be those circumstances able to be related to the three restrictions on eligibility it specifies: that the case is trivial or brought in bad faith or that there has been undue

delay.

[89] In that, the Court also necessarily confined the extent to which the Minister under s 30(3)(b) could hold surrender to be unjust or oppressive.⁴⁴ Analogously, it confined equally the ground on which the Court could under s 48(4)(a)(i), refer a case to the Minister. Under Part 3 personal circumstances are reserved to the Minister under s 30(3)(d), when deciding surrender. Under Part 4, by contrast,

_{personal circumstances have first to be assessed by the Court when deciding whether}

⁴² _{Wolf v Federal Republic of Germany, above n 21.}

⁴³ _{At [56].}

⁴⁴ At [60].

to refer surrender to the Minister under s 48(4)(a)(ii). The words are identical. In this case the Court of Appeal clearly appreciated that to be so in the remit it made.

[90] When the Court made that remit under s 48(4)(a)(ii), moreover, it had no need to spell out how that discretion was to be exercised. Mr Mailley’s state of health was a specified personal circumstance capable, in principle, of being extraordinary or compelling and a reason why extradition would be unjust or oppressive. The issue remains whether the Judge made that analysis correctly.

Assessment – composite or sequenced

[91] Mr Mailley contends that the Judge misapplied s 48(4)(a)(ii) by deciding whether each personal circumstance she considered was relevant or compelling without setting that against whether extradition would be unjust or oppressive. The Crown contends that these are two discrete questions.

[92] The same essential issue arose in Ye v Minister of Immigration.⁴⁵ It concerns the issue arising under s 47(3) of the Immigration Act 1987, which says this:

An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.

[93] There too the issue was whether a sequenced or synthetic analysis was called for by the first of the two criteria set out in s 47(3). As to that Elias CJ differed from the other members of the Court.⁴⁶ She held that the first criterion set a ‘composite standard’ and that ‘If the humanitarian circumstances are such as to make it unjust or unduly harsh for a person to be removed, then the ‘exceptional’ standard is reached.’ The decision maker, she pointed out, still had to be satisfied as to the second

criterion, that it would not be contrary to the public interest to allow the person to

_{remain in New Zealand.}

⁴⁵ _{Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104 (SC) at [34].}

⁴⁶ At [7].

[94] The majority, by contrast, held that there were ‘three ingredients to the first criterion: (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand.’⁴⁷

What first had to be decided was whether there were humanitarian circumstances that were ‘truly an exception rather than the rule’. It then held that if there were the decision maker would have to decide whether they made it unjust or unduly harsh to remove the person from New Zealand.

[95] In dividing that first criterion into two, the majority identified two ways in which it might be read. One was ‘to hold that the presence of the relevant exceptional circumstances necessarily demonstrates injustice or undue harshness’. The second ‘involves an assessment of whether the exceptional circumstances found

to exist make it unjust or unduly harsh to remove the person’.⁴⁸ On that second

reading, the Court said, which it considered more appropriately served the statutory purpose and preferred, it did not necessarily follow that if there were qualifying circumstances the removal of the person would be unjust or unduly harsh.

[96] By analogy s 48(4)(a)(ii) has three ingredients: (i) ‘circumstances of the person, including, without limitation, those relating to the age or health of the person’; (ii) that are ‘compelling or extraordinary’; (iii) that would make it ‘unjust or oppressive to surrender the person’. The Judge has first to find qualifying compelling or extraordinary circumstances and has only then to consider whether it would be unjust or oppressive to surrender the person; a discrete second conclusion not dictated by the first.

[97] That accords with the analysis of s 8(1), and thus s 48(4)(a)(i), which the Court of Appeal made in Wolf. It also confirms that s 48(4) sets out two distinct bases on which the Judge may conclude that surrender is unjust or oppressive, one founded on ‘all the circumstances of the case’ and the other on ‘the circumstances of the person’. The circumstances able to be catered for are very comprehensive, though within a range of specified categories and to a specified standard. The

_{Minister then has the equivalent ability under s 30(3)(b) and (d) to decide whether to}

⁴⁷ _{At [34].}

⁴⁸ At [37].

direct surrender, but retains the residual wider general discretion under s 30(3)(e) to decide that the person should not be surrendered for any other reason.

Compelling or extraordinary circumstances – discrete or cumulative

[98] Mr Mailley does not take issue with the way in which the Minister defined compelling or extraordinary circumstances, which she construed as posing ‘a high threshold’.⁴⁹ Nor could he. She adopted the Court of Appeal’s own definition of those words when remitting the case to the District Court:⁵⁰

In order to qualify as extraordinary circumstances, the circumstances must be out of the ordinary, unusual, uncommon or striking, while compelling denoted “very persuasive” or “very strong”.

[99] Mr Mailley contends, however, that the Judge set the bar too high by assessing each personal circumstance individually and by not recognising that while circumstances, individually, may be less than extraordinary or compelling, they may be both once they are related one to another.

[100] This is not an issue the Court of Appeal needed to resolve in its own decision. Nor did it resolve that issue in Wolf. But it is notable that in Ye, while the Court did not speak about this explicitly either, it did speak of circumstances in the round. The majority said of s 47(3):⁵¹

The flavour of the subsection as a whole, with its interweaving of the concepts of exceptional circumstances, injustice or undue harshness and the public interest suggests that Parliament, being mindful of humanitarian considerations, contemplated overstayers being allowed to remain in New Zealand if there were humanitarian circumstances of a sufficiently unusual kind that their remaining would not undermine the general importance of maintaining the integrity of the immigration system.

[101] The Supreme Court then went on to say, when explaining why the issue whether there were qualifying circumstances had first to be answered, before it became relevant to answer the ultimate question whether it would be unjust or

_{unduly harsh to deport, that the answer to the first question could not dictate that to}

⁴⁹ _{New Zealand Police v Mailey, above n 1, at [57].}

⁵⁰ _{Mailey v District Court at North Shore & Anor, above n 3, at [62].}

⁵¹ Wolf v Federal Republic of Germany, above n 21, at [36].

the second because the answer to the second depended on the strength of those qualifying circumstances. It said:⁵²

Whether the particular exceptional circumstances give rise to the necessary injustice or undue harshness is a matter for assessment of the decision maker. It will depend on how compelling or persuasive the exceptional circumstances are’.⁵³

[102] In that, the Supreme Court appears to me to have endorsed an assessment that allows for all circumstances contended to be relevant to be assessed both discretely and cumulatively. A circumstance may be ‘extraordinary or compelling’ in isolation or it may not. But, even to assess an individual circumstance, any naturally interrelated circumstance must also be relevant. Otherwise the analysis would be artificial. In the end, therefore, the issue whether there are ‘circumstances’, which are ‘extraordinary or compelling’ calls, I consider, for a cumulative assessment.

[103] The Judge in the first instance certainly assessed Mr Mailley’s physical and mental and emotional health conditions as discrete circumstances before assessing them in the round. The issue is whether she sufficiently related them one to another in her ultimate conclusion.

Rights of family and child

[104] Finally, Mr Mailley contends that the Judge was obliged to construe s 48(4)(a)(ii), taking into account New Zealand’s obligations to secure freedom from interference with home life and the protection of the family under Articles 17 and 23 of the International Covenenant on Civil and Political Rights, and to safeguard the rights of his child, especially under Article 8 of the United Nations Convention on the Rights of the Child.

[105] The Judge was able to construe s 48(4)(a)(ii) consistently with those international rights, Mr Mailley contends, when considering whether his personal circumstances were extraordinary or compelling, by recognising that the impact of his extradition on his family’s life, and on the rights of his child to the love and

_{protection from both of her parents, was inextricably interlinked with his own}

⁵² _{At [38].}

⁵³ At [38].

interest as a member of the family and his duty to his child. Equally, Mr Mailley contends, when assessing whether extradition would be unjust or oppressive, the Judge should have recognised that the impact on him was inextricably interlinked with the impact on his family precisely because his extradition would force the family apart.

[106] This question, like the last, is to be resolved according to principles in which all members of the Supreme Court joined in Ye v Minister of Immigration, when interpreting s 47(3) of the Immigration Act 1987. It there said that the Act was to be interpreted:⁵⁴

.. in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments and, in particular, in present circumstances, those of the United Nations Convention on the Rights of the Child.

[107] However, the Court also held that while under the Treaty the best interests of a child were a ‘primary consideration’, that did not mean that, as under the Care of Children Act 2004, they were ‘the first and paramount consideration’. The two statutes served distinct policy objectives; and the Court struck this balance:⁵⁵

It is appropriate, in the light of New Zealand’s obligations under Article 3(1), to interpret the relevant provisions of the Immigration Act so that the interests of New Zealand citizen children are always regarded as an important consideration, in the decision making processes. The words ‘a primary consideration’ in Article 3(1) do not denote how this consideration ranks against any other relevant consideration such as the public interest. The child’s interests are always important; but what ultimate effect should be given to them is a matter of assessment against all the other relevant circumstances of the particular case and the specifics of any statutory test.

[108] In this the Judge also struck a balance. She held that she could not take into account the impact on Mr Mailley’s family under s 48(4)(a)(ii). That was not a circumstance personal to him. It was a circumstance of the case. But she could take into account the impact on him. That impact, she considered, although it was beyond her remit, might also be able to be catered for under s 8 ‘providing there was enough of a nexus between the delay and the personal impact on Mr Mailley’. Here

_{too, however, she considered that the impact on Mr Mailley could not be}

⁵⁴ _{At [24].}

⁵⁵ At [25].

extraordinary or compelling. It was a natural consequence of his choices and actions.⁵⁶

[109] The issue, which then arises under Part 4, though not under Part 3, is how, if at all, the international obligations on which Mr Mailley relies are able to be taken into account. If they are not personal circumstances under s 48(4)(a)(ii), and may not be circumstances of the case under s 48(4)(a)(i), the Minister’s ability to consider them in the exercise of his residual discretion under s 30(3)(e) will never arise. Under Part 3 the Minister will have that ability because the Court decides eligibility only.

[110] This issue is not one, however, that the Judge was required to consider on the issue remitted to the District Court under s 48(4)(a)(ii) and does not call for any conclusion by me on this review.

Conclusions

[111] In declining to refer the issue of surrender to the Minister under s 48(4)(a)(ii) the Judge focused, as she was obliged to do, on whether his state of health constituted an extraordinary or compelling circumstance rendering extradition unjust or oppressive; and, I conclude, the manner in which she did so accorded with the terms of that discretionary power.

[112] As the Court of Appeal recognised when remitting that question to the District Court, Mr Mailley’s state of health was a personal circumstance, under s 48(4)(a)(ii), capable, depending on its nature and severity, of constituting an extraordinary or compelling circumstance rendering surrender unjust or oppressive. That was the analysis the Judge was obliged to make and she did make.

[113] The Judge correctly assessed each aspect of Mr Mailley’s state of health, first his heart condition, and then his mental and emotional condition, his likely bipolar affective disorder and his personality disorder. She found each less than compelling

_{or extraordinary. But she also recognised that they were interrelated and assessed}

⁵⁶ At [98].

them together. She assessed distinctly, taking them into account, the risk that Mr Mailley might attempt suicide if extradited, or more exactly any increase in that risk, and she found the three together, even when combined, less than compelling or extraordinary.

[114] The Judge correctly saw the question whether, on account of those circumstances, it would be unjust or oppressive to extradite Mr Mailley to be distinct from the prior question whether they were extraordinary or compelling. Strictly, she did not have to answer that ultimate question unless she found that they were. However, she deemed Mr Mailley’s documented risk of suicide attempts, set against his physical and mental and emotional conditions, to be extraordinary or compelling in order to assess whether it would be unjust or oppressive to extradite him, taking into account the four countervailing factors on which he by then relied even though they were beyond the scope of the remitted issue.

[115] As to those further four factors, she distinguished those clearly personal to Mr Mailley, the time he had spent on remand, especially in New Zealand, and the impact on him of being separated from his wife and child, from those which were not personal and were other circumstances of the case beyond the scope of the remitted issue. She assessed those two factors individually without considering whether, if they were combined with Mr Mailley’s risk of suicide, set against his physical, mental and emotional condition, all combined would constitute extraordinary or compelling circumstances rendering surrender unjust or oppressive.

[116] Had the issue remitted to the District Court been to consider on evidence what, if any, personal circumstance Mr Mailley might be able to call in aid under s

48(4)(a)(ii), that would, to my mind, have amounted to an error of principle. But that was not the remit made and the Judge’s assessment of those two extraneous circumstances did not begin to touch, let alone invalidate, her conclusions as to the remitted issue.

[117] In the result, I conclude, that the Judge decided the remitted issue consistently with s 48(4)(a)(ii), and in her wider analysis made no error of principle

invalidating the decision she was required to make. How she weighed the evidence in the exercise of her discretion cannot be revisited on this review.

OUTCOME

[118] The Judge made no error in the exercise of her discretion substituting the Commonwealth of Australia for the New Zealand police as applicant in the extradition proceeding, or in declining to refer the issue of surrender to the Minister of Justice. She consequently made no error in making an order for the surrender of Mr Mailley to the Commonwealth; or to the state of Queensland in particular. I decline Mr Mailley’s application for judicial review.

[119] As to the issue of costs, Mr Mailley is legally aided and that may well be decisive. If costs are pursued a memorandum is to be filed and served within 10 working days of the date of this decision. Any reply within is to be made within the

_{succeeding 10 working days.}

P.J. Keane J