Re Amrit Lal Narain; Director of Public Prosecutions (First Cross- Appellant) and Bruce Adam Currie (Second Cross-Appellant) v Director of Public Prosecutions; Bruce Adam Currie; David Kitchener Hyde and Amrit Lal Narain (Cross Respondent) [1987] FCA 25 (9 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: AMRIT LAL NARAIN; DIRECTOR OF PUBLIC PROSECUTIONS (First Cross- Appellant)
and BRUCE ADAM CURRIE (Second Cross-Appellant)
And: DIRECTOR OF PUBLIC PROSECUTIONS; BRUCE ADAM CURRIE; DAVID KITCHENER HYDE
and AMRIT LAL NARAIN (Cross Respondent)
No. G409 of 1986
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW WOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Wilcox J.
Jackson J.

CATCHWORDS

Extradition - Surrender of alleged offender to New Zealand government - Necessity for evidence of guilt before issue of warrant by magistrate for surrender - Onus of proof of exceptions to obligation to surrender - Whether "accusation" made "in good faith" - Whether accusation "in interests of justice" - Whether "any other reason" - Particulars of alleged offence.

Extradition (Commonwealth Countries) Act 1966, ss.16, 24, 25, 26, 27, 28.

Service and Execution of Process Act (1901) s.18.

O'Donnell v. Heslop (1910) VLR 162, Bates v. McDonald (1985) 2 NSWLR 89, Ex parte Maher (1983) 2 Qd R 695, Re Alstergren and

Nosworthy (1947) VLR 23, Daemar v. Parker (1975) 2 NSWLR 744,

Bryan v. Preston (1982) 44 ALR 217, Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, Willoughby v. Eland (1985) 59 ALR 147, Vyner v. Keeper of Her Majesty's Penitentiary at Malabar (1975) 6 ALR 105, Aston v. Irvine [1955] HCA 53; (1955) 92 CLR 353, Ex parte Klumper (1966) 86 WN (Pt.1) (NSW) 142, Walker v. Duncan (1975) 1 NSWLR 106,

Skewes v. Veen Huizen (1978) 22 ALR 101, Ammann v. Wegener (1973) 47 ALJR 65 referred to.

HEARING

SYDNEY
9:2:1987

Counsel for the Appellant and Cross-Respondent: Mr M. Einfeld QC with Mr M. Ainsworth

Solicitor of the Appellant and Cross-respondent: Wrothwell G. Wall, Esq.

Counsel for the first, second and third Respondents and first and second Cross-Appellant: Mr M. Tobial QC with Mr R. W. White

Solicitor for the first, second and third Respondents and first and second Cross-Appellants: Director of Public Prosecutions.

ORDER

The appeal be dismissed.

The cross-appeal be allowed.

The order made by Pincus J in respect of the detention charge be set aside and in lieu thereof it be ordered that the application for review be dismissed.

The appellant pay to the respondents their costs incurred in respect both of the proceedings before Pincus J and the proceedings in this Court.

Note: Settlement and entry of orders is dealt with in Order

DECISION

This appeal is from a decision of a judge of the Court (Pincus J.) given in an applicationmade by the present appellant under s.28 of the Extradition (Commonwealth Countries) Act 1966 ("the Act') for review of the decision of a magistrate under the Act ordering the extradition of the appellant to New Zealand. The review of the magistrate's o9rder was by way of rehearing, and further or substituted evidence could be called thereon (s.28(3)).

2. A District Court Judge in New Zealand had on 8 December 1985 directed warrants to "Every Constable" for the arrest of the appellant on two charges, laid by way of information. One was that between 1 November1983 and 8 June 1895 the appellant, contrary to s.209(1)(a) of the Crimes Act 1961 (N.Z.), "Did unlawfully detain Nell Grace ARMITT in a garage pit at 182 West Street, without her consent, with intent to cause her to be confined." The other was that between the same dates the appellant, contrary to s.194(a) of the Crimes Act 1961 (N.Z.) "Did assault a child, namely Amrit Jason SICH, aged about two years." Both offences were marked as being indictable. On 4 February 1986 the warrants were each indorsed by an Australian magistrate as follows:

"I, Kenneth Henderson, a Magistrate, being satisfied

that this warrant is duly authenticated, pursuant to
sub-section 24(1) of the Extradition (Commonwealth
Countries) Act 1966, hereby authorise the execution of
the warrant in Australia."

3. The appellant was apprehended, and brought before the third respondent to this appeal, who is a magistrate in New South Wales (s.26(12)) and he ordered his surrender to New Zealand (s.26(5)).

4. Section 27 of the Act contains restrictions on the power of a magistrate to order the surrender of a person, to use the language of the headnote. I set out the terms of the section:

"27. If a Magistrate before whom a person is brought under
this Part is satisfied -

(a) by reason of -

(i) the trivial nature of the offence that the person
is alleged tohave committed or has committed;

(ii) the accusation against the person not having been
made in good faith or in the interests of
justice; or

(iii) the passage of time since the offence is alleged
to have been committed or was committed; or

(b) for any other reason,

that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, or to surrender the person before the expiration of a particular period, the Magistrate may

(c) order that the person may be released;

(d) order that the person be surrendered after the
expiration of a period specified in the order and order
the release of the person on bail until the expiration
of that period; or

(e) make such other order as the Magistrate thinks just."

Except for the opening words, the section is in the same terms as s.15, but that section is not in Part III, which deals exclusively with extradition to New Zealand. In relation to New Zealand the scheme of Part III is closely similar to that in the Service and Execution of Process Act 1901 and proceeds on the basis of "backing" or indorsment of warrants, without further proof or the intervention of the Attorney-General. Relevant activities in Australia are largely of an administrative nature. If it is found that surrender on the warrant would be "unjust, oppressive or too severe a punishment" the Magistrate may adopt one of the courses set out, including release of the person named. In the absence of one of the restrictions being established the Magistrate proceeds to order extradition, with the result that the issue of a warrant in New Zealand is sufficient to bring about the attendance of the person named before a New Zealand Court.

5. The learned judge found that it was unjust and oppressive under s.27(b) to extradite the applicant on the detention charge for the reasons he set out:

(i) So far as one can determine from the facts available,
if any offence occurred it was completed before March
1984, yet no complaint was made until August 1985 -
and then, curiously enough, to the mass media.

(ii) The prosecution persisted in charging a detention
during a much longer period than, on the information
available, could possibly be justified.

(iii) There was direct evidence from witnesses in a
position to know the facts that no detention took
place, and nothing to the contrary of that was put to
them.

(iv) The prosecution failed, both before the magistrate
and before me, to give any reasonable account,
however brief, of the nature of its case, although it
pursued peripheral matters before the magistrate
quite freely.

(v) The peson described by Det. Sgt. Currie as the
complaint was, on the unchallenged evidence a
person of very limited intellect."

6. His Honour found that no case was made out by the appellant in opposition to extradition on the charge of assault. In relation to the detention charge, he set aside the warrant and order for surrender contained therin. There is before us an appeal against the finding in relation to assault, and a cross-appeal in respect of the detention charge. It is therefore necessary to look at each element of s.27 in relation to both charges.

7. It is plain that evidence can be called on a hearing under s.27 as relevant to the operation of that provision. In some cases it is possible that a Magistrate can form a conlusion from the warrant itself, in the light of any submission or argument by the person named. Where, however, that person wishes to make a case under one of the provisions of the section the onus will be on him. To require an officeer seeking enforcement of the warrant to adduce evidence before the Magistrate in support of the offence charged would be contrary to the scheme of the Act. This is not to say of course that a police officer or, at his instance, someone else on the prosecution side may not give evidence before the Magistrate. It is open for the officer to do so and whether he does do so will doubtless depend upon the circumstances and the case made against extradition, including evidence adduced by the person sought to be extradited. It may be necessary in a particular case for the prosecution to go further and call other evidence from New Zealand. However, in a contested case of that nature the onus still rests with the person named in the warrant.

8. It was not argued before the Magistrate or the learned judge in this case that eithe of the offences with which the appellant was charged was of a "trivial nature" (s.27(1)(a)(i)). My present view is that the reference here is to the charge as recited and that an examination of evidence supporting it is not appropriate. It may be, in a particular case, that particulars of the charge may have to be provided to the person named in order that he be assisted in any case he wihses to make. The Magistrate has ample power to make sure that no injustice is done to him in this connection.

9. It was argued in relation to both charges that the accusations were not made "in good faith or in the interests of justice" (s.27(1)(a)(ii)). Evidence was adduced to show that persons making the complaints to the police were acting vindictively or otherwise not in good faith, but the learned Magistrate was not satisfied on this matter, and the learned Judge did not come to a conlusion respecting it. It is in any event a misapprehension to examine the motivation, or level of intelligence of a person making a complaint to the police. The foundations of charges are many, and often are not dependent upon a complaint. The accusation is made by the police officer who lays the information (s.145 of the Summary Proceedings Act 1957 (N.Z.) and second schedule thereto). This is so in form and in substance. The police officer at the initial stage bears the responsibility for making and prosecuting the charge, and commonly he will have taken steps to satisfy himself that the charge is supportable. He may well have taken measures to see that a complaint is independently corroborated. In any event it is quite likely that activities by police officers are interposed between receipt of a complaint and the making of a charge. Whether this be so or not the sub-paragraph in my view when it refers to "the accusation" is referring to the "accusation (being made in good faith" and is looking to the position of the informant. This was also the view of the Court of Appeal (N.S.W.) in Willoughby v. Eland (1985) 59 ALR 147, see at p 150. No case was made out on the facts under this part of the sub-paragraph.

10. When the sub-paragraph refers to "the interests of justice" it is looking to the accusation made in the information. There can be debate as to the degree of subjectivity involved but it is only necessary to say in this instance that no case was made out. Indeed, as I understand, it was not intended to do so.

11. A matter which was raised many times on behalf of the present appellant was that he was at a disadvantage before the magistrate in not then having available witnesses for the prosecution who could give some detail of the circumstances and be cross-examined. Detective Sergeant Currie from New Zealand was present to support the warrant and the extradition. He instructed counsel and gave some evidence but his knowledge of relevant facts was incomplete.

12. As I have already endeavoured to explain, the section does not provide for a hearing of the merits of the case and evidence, other than the purely formal, would only be necessary if evidence were adduced by or on behalf of the person or persons named, going to the relevant issues, which it is thought should be countered. I have already said that the person named, such as the applicant in the present case, should, if they are sought, be given reasonabnle details of the charge made against him. By this I do not mean that they should be in the fullest detail or that the proceedings should resolve themselves into a contest about further and better particulars. In some cases the information itself will provide sufficient particulaars, but in other cases it may be necessary for some further information to be supplied, in fairness to the person apprehended. If he genuinely envisages defending himself against extradition onone of the grounds of s.27 he should know enough to enable this to be done. In the present case the complaint is not as to relevant particulars but rather as to the absence of evidence which could be challenged.

13. The appellant made a general submission under the heading "any other reason" (s.27(b)) (see s.18 of the Service and Execution of Process Act), and said that if the circumstances were taken in sum his surrender would be "unjust, oppressive or too severe a punishment". I have dealt, I think, with the ingredients relied upon and I see no reason to differ from the conclusion of the Magistrate and the Judge that the totality of circumstances in relation to the assault charge does not satisfy this requirement. The appeal in relation to that charge therefore fails.

14. In relation to the detention charge, I have already set out the reasons upon which the learned Judge acted in setting aside the warrant and Order for Surrender. His Honour's reasons (i), (ii), (iii) and (v) would seem to have been derived from evidence, but, with respect, they do not severally or together constitute grounds for declining to order the surrender of the appellant.

15. Paragraph (i) deals with delay in the making of a complaint of about 18 months. This might prove to be very pertinent at the hearing but might on the other hand be fully explained or not treated as of any consequence. A similar observation can be made in relation to paragraph (ii). Paragraph (iii) relates directly to the merits of the case and seems to proceed on the basis that there was an obligation on the part of those seeking surrender to establish that case before the New South Wales Magistrate. Paragraph (v) relates only to the weight to be given to the evidence of the complaint on the evidence adduced on behalf of the appellant. This again was a matter for the hearing.

16. Paragraph (iv) stands in a slightly different position, but my understanding is that the failure referred to by his Honour was a failure to provide information concerning the offences, sufficient to enable a case to be made. As I have already said, the matter raised before us was a failure to produce witnesses who could give detailed information and be cross-examined. There seems to have been no request for particulars or for an adjournment until particulars were provided. The situation was that the appellant was expecting to be faced by the evidence against him and this he was not entitled to. The issues were being treated as much wider than those for which the section provides.

17. In fact, it is difficult to believe from the warrant and from what he was told that the appellant did not obtain a sufficient account of the essence of the charges. If he had had any difficulty in this regard he could have sought an adjournment or obtained some suitable order from the Magistrate, or, later, the Judge. While his counsel probed at some lenght, he did not press for further information to be supplied, by way of particulars. The hearings extended over two periods with a substantial interval of time between them. It does not seem to me that what happened can be regarded as oppressive.

18. I would therefore dismiss the appeal and allow the cross-appeal, in both cases with costs.

The proceedings before the Court comprise an appeal and a cross-appeal from a decision of a judge of the Court (Pincus J) given in an application for review made by the present appellant, Amrit Lal Narain, in relation to the decision of a magistrate under the Extradition (Commonwealth Countries) Act 1966 ordering the extradition of the appellant to New Zealand.

2. On 8 December 1985, a District Court judge in New Zealand directed warrants to "Every Constable" for the arrest of the appellant on two charges, each laid by way of information by the second respondent, Detective Sergeant Bruce Adam Currie. One charge alleged that between 1 November 1983 and 8 June 1985 the appellant, contrary to s.209(1)(a) of the Crimes Act 1961 (N.Z.), "Did unlawfully detain Nell Grace ARMITT in a garage pit at 182 West Street, without her consent, with intent to cause her to be confined." The other charge was that between the same dates the appellant, contrary to s.194(a) of the Crimes Act 1961 (N.Z.), "Did assault a child, namely Amrit Jason SICH, aged about two years." Both offences were marked as being indictable. On 4 February 1986 the warrants were each indorsed by an Australian magistrate as follows:

"I, Kenneth Henderson, a Magistrate, being
satisfied that this warrant is duly
authenticated, pursuant to sub-section 24(1)
of the Extradition (Commonwealth Countries)
Act 1966, hereby authorise the execution of
the warrant in Australia."

3. The appellant was apprehended, and brought before the third respondent, Mr D K Hyde SM, in New South Wales. After hearing a considerable body of evidence, Mr Hyde made orders, pursuant to s.26(5) of the Extradition (Commonwealth Countries) Act and in respect of each charge, for the surrender of the appellant to New Zealand.

4. The appellant sought the review in this Court of the magistrate's orders. By s.28(3) of the Act such a review is by way of rehearing, in the course of which further evidence may be given. Further evidence was in fact adduced before the primary judge. His Honour upheld the magistrate's order on the assault charge but he held that it was unjust and oppressive to extradite the applicant on the detention charge. He set out the following summary of reasons:

"(i) So far as one can determine from the
facts available, if any offence occurred
it was completed before March 1984, yet
no complaint was made until August 1985 -
and then, curiously enough, to the mass
media.

(ii) The prosecution persisted in charging a
detention during a much longer period
than, on the information available, could
possibly be justified.

(iii) There was direct evidence from witnesses
in a position to know the facts that no
detention took place, and nothing to the
contrary of that was put to them.

(iv) The prosecution failed, both before the
magistrate and before me, to give any
reasonable account, however brief, of the
nature of its case, although it pursued
peripheral matters before the magistrate
quite freely.

(v) The person described by Det. Sgt. Currie
as the complainant was, on the
unchallenged evidence, a person of very
limited intellect."

In relation to the detention charge, Pincus J set aside the warrant and order for surrender.

5. Mr Narain now appeals against the failure of Pincus J to set aside the order of the magistrate in relation to assault. The Director of Public Prosecutions and the informant cross-appeal in respect of the detention charge.
The scheme of Part III

6. Part II of the Extradition (Commonwealth Countries) Act (ss.8-22) deals with extradition to and from declared Commonwealth countries. Part III (ss.24-30) deals only with extradition to and from New Zealand, which is not a declared Commonwealth country. There are some similarities between the two Parts but the requirements for the extradition of a person to New Zealand are less demanding than those applicable to other countries.

7. Section 24 of the Act provides for the indorsement by an Australian magistrate of an authenticated apprehension warrant issued by a New Zealand court. Such an indorsement operates as a sufficient authority for the execution of the warrant in Australia. Section 25 permits the issue of a different form of warrant in a case where an authenticated warrant is not produced to the Australian magistrate or where further information is required by that magistrate. A person apprehended under a warrant, in either form, must be brought as soon as practicable before a magistrate in the State or Territory in which he or she is apprehended (s.26(1)). Section 26(5) provides that, where the person was apprehended under a s.24 warrant or -- the person having been apprehended under a s.25 warrant -- a s.24 warrant has been indorsed, the magistrate shall, subject to s.27, by warrant in the prescribed form order that the person be surrendered to New Zealand and, for that purpose, be delivered into the appropriate custody. Subsection (6) of s.26 provides an exception in the case where the magistrate is of the opinion that it would be dangerous to the life, or prejudicial to the health, of the person to surrender him or her to New Zealand.

8. Section 27, upon which the present contest substantially depends, provides further exceptions. That section is in these terms:

"27. If a Magistrate before whom a person is brought

under this Part is satisfied -

(a) by reason of -

(i) the trivial nature of the offence
that the person is alleged to have
committed or has committed;

(ii) the accusation against the person
not having been made in good faith
or in the interests of justice; or

(iii) the passage of time since the
offence is alleged to have been
committed or was committed; or

(b) for any other reason,

that it would be unjust, oppressive or too severe a
punishment to surrender the person to New Zealand, or to
surrender the person before the expiration of a
particular period, the Magistrate may --

(c) order that the person be released;

(d) order that the person be surrendered
after the expiration of a period
specified in the order and order the
release of the person on bail until the
expiration of that period; or

(e) make such other order as the Magistrate
thinks just."

The need for evidence of guilt

9. No evidence was called, either before the magistrate or before Pincus J, to show that Mr Narain is guilty of either of the offences in relation to which his extradition is sought. Apparently the view was taken that this was unnecessary, that -- in the case of extradition to New Zealand -- the function of a magistrate and, on review, of this Court is limited to ensuring that the necessary formalities have been observed and, in an appropriate case, to considering any exceptions arising under s.26(6) or s.27. The correctness of that view was challenged before us, counsel for the appellant maintaining that it is inconceivable that the legislature envisaged extradition of a person from Australia to New Zealand without material to indicate guilt being placed before the Australian court. Counsel did not contend that this material had necessarily to be in a form which would make it admissible under the usual law relating to evidence but they insisted that sufficient material had to be placed before the magistrate to enable the magistrate to be satisfied that there was a prima facie case that the person had committed the offence. Counsel supported the submission by pointing to the fact that Parliament provided, by s.28, for review in this Court of any order for extradition made by a magistrate; a safeguard, they said, which would be pointless if the applicant for extradition were free to "subvert" -- to use counsel's term -- the whole process by declining to supply any information as to the facts of the case.

10. Notwithstanding the submission made on behalf of the appellant, we are of the opinion that the applicant for an order under s.26(5) is not obliged to place material before the magistrate, or on review in this Court, to show that the person whose extradition is sought is guilty of the alleged offence.

11. In relation to this matter Part III of the Act stands in marked contrast to Part II, which requires evidence of guilt. Section 15(6) requires that there be "such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he is a magistrate, justify the trial of the person "if the relevant act or omission had taken place in that State or Territory. Part II contains provisions similar to s.26(6) and s.27 respectively: see s.15(7) and s.16. It is inconceivable, if Parliament had intended to require evidence of guilt, that it would have omitted to insert in Part III an equivalent of s.15(6). There is no ambiguity about s.26(5). In mandatory terms it provides that, where a person has been apprehended under a proper warrant, subject only to s.27 -- and implicitly to s.26(6) -- the magistrate "shall ... order the person to be surrendered to New Zealand".

12. The inference as to the legislative intention which we would, in any event, draw from the terms of s.26, the structure of Part III and the omission of an equivalent to s.15(6) is supported by the explanation of Part III given by the then Attorney-General (Hon B M Snedden) in his Second Reading Speech on the Bill for the 1966 Act:

"Part III provides a simple procedure known as
'backing the warrant', based on provisions of
the Service and Execution of Process Act, for
the interstate return of offenders within
Australia. It will work this way. Where a
warrant of arrest is sent to Australia from,
say, New Zealand, an Australian magistrate may
endorse the warrant, which can then be
executed anywhere in Australia. On his
arrest, the fugitive would be brought before a
magistrate who, if certain specified
conditions are satisfied, must order the
surrender of the fugitive to New Zealand.
There is a right of appeal, to the Supreme
Court of the State or Territory in which the
person is apprehended, against the order of
the magistrate, and also a right for the
fugitive to apply for release from custody, on
reasonable notice of the application, if he is
not conveyed out of Australia within one month
of the date of the order or, if there has been
an unsuccessful appeal, within one month of
the decision of the court."

(See Parliamentary Debates, House of Representatives, 14 October 1966, p.1819).

13. The reference by the Attorney to the Service and Execution of Process Act 1901 is telling. It has never been necessary for a person seeking the extradition, under that Act, of a person from one Australian jurisdiction to another to place before the magistrate any material relating to the facts of the alleged offence. Production of an authenticated warrant is enough: see s.18(1) of the Service and Execution of Process Act. Having regard to the propinquity of New Zealand and the similarities between the laws and legal system of that country and those in Australian jurisdictions, it is readily understandable that the Parliament was prepared to adopt the same rule for New Zealand as it thought appropriate as between parts of Australia.

14. In our opinion it is clear that, in enacting Part III of the Extradition (Commonwealth Countries) Act, Parliament intended to dispense in relation to New Zealand with any requirement for the production to the magistrate of evidence to suggest the guilt of the person whose extradition was sought. The provisions for review of the magistrate's decision do not suggest otherwise. Whether or not evidence of guilt is placed before the magistrate, ss.26(6) and 27 may give rise to important questions not inappropriate for review in this Court.

15. In coming to this conclusion we have not overlooked a submission of counsel for the appellant which was based upon s.27(a)(i). Counsel did not suggest that Mr Hyde, or Pincus J upon review, should have found that either of the alleged offences was of a trivial nature. But they did contend that the fact that Parliament included this ground in s.27 as a possible basis for a finding that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand showed that it contemplated that the facts relating to the alleged offence would be before the magistrate. Otherwise, it was asked, how was the magistrate to determine the question of triviality?

16. There has been some difference in judicial opinion upon the question whether, in considering the "nature" of the offence, attention must be confined to the constituent elements or whether the magistrate may consider matters dehors the mere statement of the charge in considering triviality: compare O'Donnell v. Heslop (1910) VLR 162 at p.171 and Bates v. McDonald (1985) 2 NSWLR 89 at p 93 with Ex parte Maher (1983) 2 Qd R 695 at pp 696-697. It is unnecessary for us to express an opinion on the matter since it is clear that, even if the wider view were correct, it would not follow that the party seeking an order for extradition is required to adduce evidence of matters dehors the charge in order to obtain an order under s.26(5).

The onus of proof under s.27

17. A second general submission put on behalf of the appellant was that no onus of proof is cast by s.27 upon a person whose extradition is sought. An obligation rests upon the person seeking extradition, it was said, to negative each of the matters specified in paras.(a) and (b) of s.27 and, therefore, the injustice, oppressiveness and severity of surrendering the person to New Zealand. The submission is inconsistent with a long line of authority under the Service and Execution of Process Act and with several decisions under s.27 itself, in each of which it has been held that the onus rests upon a person raising a matter such as those referred to in s.27 to prove the necessary facts: see O'Donnell v. Heslop at pp 169, 174, 175, Re Alstergren and Nosworthy (1947) VLR 23 at pp 29, 30, 37, Daemar v. Parker (1975) 2 NSWLR 744 at p 749, Bryan v. Preston (1982) 44 ALR 217 at p 222, Bates v. McDonald at pp.93, 99, 102.

18. It appears to us that the submission of the appellant is inconsistent with the scheme of Part III. Section 26(5) requires the magistrate, the necessary formalities having been satisfied, to order surrender, subject only to ss.26(6) and s.27. The legislation provides a clear case of the situation which the High Court of Australia had in mind in Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at pp.519-520:

"On the other hand it may be the purpose of the
enactment to lay down some principle of
liability which it means to apply generally
and then to provide for some special grounds
of excuse, justification or exculpation
depending upon new or additional facts. In
the same way where conditions of general
application giving rise to a right are laid
down, additional facts of a special nature may
be made a ground for defeating or excluding
the right. For such a purpose the use of a
proviso is natural. But in whatever form the
enactment is cast, if it expresses an
exculpation, justification, excuse, ground of
defeasance or exclusion which assumes the
existence of the general or primary grounds
from which the liability or right arises but
denies the right or liability in a particular
case by reason of additional or special facts,
then it is evident that such an enactment
supplies considerations of substance for
placing the burden of proof on the party
seeking to rely upon the additional or special
matter...".

19. The authorities upon onus under s.27 to which we have referred were all decided before the section took its present form. Until the amendments made by the Extradition (Commonwealth Countries) Amendment Act 1985 there was no reference in s.27 to "any other reason". In our opinion those cases were correctly decided in relation to onus, having regard to the then form of the legislation. But the position is made even clearer by the addition of "any other reason". It would be irrational to cast upon an applicant for extradition the burden of negativing every reason, including reasons known only to the person sought to be extradited, capable of leading to a finding of injustice, oppression or undue severity.

Good faith

20. As we have said, there was no submission that either offence was trivial in nature. Nor was reliance placed upon the time which had elapsed since the commission of the alleged offences (s.27(a)(iii)). But it has at all times been contended that the accusations made against Mr Narain were not made in good faith or in the interests of justice.

21. The informations upon which the warrants are based were laid in New Zealand by Detective Sergeant Currie. It has not been suggested that, in prosecuting the matters, Detective Sergeant Currie was personally lacking in good faith. But two alternative arguments based on s.27(a)(ii) were put: first, that the person whose good faith is material to s.27(a)(ii) is the "true accuser or informant of the facts"; that person being, in the case of the detention charge, the alleged victim Ms Armitt and, in the case of the assault charge, Mrs Sich, the mother of the alleged victim. Secondly, it was said that, even if the relevant good faith is that of the informant, in a case where the informant has no personal knowledge of the facts the informant's good faith is tainted by any bad faith possessed by those upon whom the informant relies for an understanding of the facts.

22. Detective Sergeant Currie gave evidence that the first complaint about the detention matter was made to police by Ms Armitt and that the first complaint of assault was made by Mrs Sich. Before the magistrate evidence was led from a number of witnesses, called on behalf of Mr Narain, in an attempt to demonstrate that Ms Armitt and Mrs Sich had made their complaints out of ulterior and malicious motives.

23. Neither Mr Hyde nor Pincus J made any finding that Ms Armitt or Mrs Sich lacked good faith when they made their complaints. However, counsel took us to evidence given before Mr Hyde -- which was uncontradicted, neither Ms Armitt or Mrs Sich being called -- which they submitted compelled a finding to that effect. We have considered that evidence but we prefer not to comment upon it. It is likely that there will be further reference to those matters in any proceedings in New Zealand consequent upon the extradition of Mr Narain. In our opinion the case sought to be made on good faith was misconceived; the good faith of Ms Armitt and Mrs Sich was not a relevant matter.

24. Section 27(a)(ii) refers to "the accusation" against the person not having been made in good faith. In that respect it contrasts with the language used in s.18(6)(b) of the Service and Execution of Process Act: "the application for the return of the person has not been made in good faith in the interests of justice". We leave aside anything that may turn upon the absence of the disjunctive "or" in that formulation. For present purposes it is relevant only to contrast "accusation" with "application for the return of the person". The application for return under the Service and Execution of Process Act is made by an individual -- usually a police officer -- representing the jurisdiction seeking extradition. The motives underlying that application are those made relevant by s.18(6)(b). Those motives may differ from those which caused the informant -- perhaps a different person -- to lay the original information.

25. The adoption in the Extradition (Commonwealth Countries) Act -- in Pt.II as well as Pt.III: see s.16(a)(ii) -- of language different from the longstanding formula used in the Service and Execution of Process Act -- and which was itself taken from s.10 of the United Kingdom Fugitive Offenders Act 1881 -- indicates that Parliament wished to make relevant the motives of someone other than the person whose task it was to make the formal application for extradition. The magistrate, in a proper case, became obliged to consider the good faith of the person who made the "accusation". The word "accusation" is not a legal term of art. It is an appropriate use of language to say that a victim "accuses" his or her assailant of an offence. But it is doubtful that the word "accusation" was used in that sense in s.27(a)(ii). The sub-paragraph requires consideration, in an appropriate case, of the question whether an "accusation" has been made "in the interests of justice". This wording suggests a formal proceeding for the vindication of justice rather than an informal complaint. Moreover, if the relevant question was the motives of the person whose complaint had set in motion the wheels of justice practical difficulties might arise. Prosecutions not infrequently stem from complaints made, or information supplied, by more than one person. Which would be the "accusation"?

26. Finally, it is not easy to see why the good faith of a complainant to the police should be regarded as critical. It is not uncommon for people to report suspected criminal activity out of motives of vengeance or self-interest. Nonetheless, it may appear upon investigation that an offence has been committed. In such a case a prosecution is not a perversion of the criminal justice system.

27. For all of these reasons we conclude that the word "accusation" is used in s.27(a)(ii) to refer to the formal proceedings by which the prosecution was commenced. We agree with the views to that effect expressed in Daemar v. Parker, Willoughby v. Eland (1985) 59 ALR 147 and Bates v. McDonald. A similar view, in relation to the use of the word "accusation" in s.16, was expressed by Yeldham J in Vyner v. Keeper of Her Majesty's Penitentiary at Malabar (1975) 6 ALR 105 at pp.108-109. The non-technical term "accusation" was probably chosen so as to include all of the various procedures -- information, charge, etc -- which might be followed in New Zealand; or, in s.16, in any declared country. It follows from this conclusion that, in the present case, the two "accusations" were the informations laid by Detective Sergeant Currie. The question, then, is whether those informations were laid in good faith.

28. As we have said, no imputation was made against Detective Sergeant Currie. But it appeared from his evidence, both before the magistrate and before Pincus J, that Detective Sergeant Currie's knowledge of the facts of the alleged offences was very limited. Under those circumstances, the appellant contended, he became infected with the bad faith of those whose complaints led him to lay the informations.

29. We do not accept this submission. It is possible to imagine a case in which a police officer receives a complaint from a person apparently acting out of malicious motives and the police officer, without making or causing any investigation of the complaint, reacts by laying an information or charge. Under such circumstances it may be said that the "accusation" is not made in good faith; not because the officer is infected by the motives of the complainant but because he or she has no basis -- other than obviously unreliable information -- for believing that an offence has been committed, so that the proper conclusion is that there was no genuine belief of guilt. But that is not the present case. The evidence of Detective Sergeant Currie, which was not contested, was that the complaints of Ms Armitt and Mrs Sich were each made late in August 1985. Each complaint was made to a police officer in a district other than his own. The complaints were referred to his district for further inquiry. Detective Sergeant Currie did not personally participate in the inquiry but officers under his control interviewed a number of people, including both complainants. The information thus obtained was referred to Crown law officers who advised Detective Sergeant Currie that two informations, in the forms actually adopted, should be laid. Whatever the eventual result of the prosecutions, Detective Sergeant Currie acted reasonably and in good faith in initiating proceedings in reliance upon that advice.
In the interests of justice

30. Section 27(a)(ii) provides, as a reason for a conclusion of injustice, oppression or undue severity, that the accusation was not made "in the interests of justice". On behalf of the appellant reliance was placed on this second limb of the sub-paragraph, the following matters -- in relation to the assault charge -- being relied upon:

"(i) there is no evidence that the alleged
offence has been committed;

(ii) there is unchallenged evidence that it
has not been committed;

(iii) there was no cross examination of that
evidence to suggest that the evidence was
false or unreliable;

(iv) there is unchallenged evidence that the
true accuser's accusation was not made in
good faith;

(v) there was no cross examination to suggest
the contrary;

(vi) the actual events, on which the appellant
was charged, could on the undisputed
evidence not be true, at least as to the
times of their alleged occurrence."

31. We will deal with the substance of these matters, under a different heading, in a moment. In relation to s.27(a)(ii) it is enough to say that none of these matters are capable of bearing upon the question whether the accusation was made -- that is either information was laid -- in the interests of justice. Once it be appreciated that the relevant purpose was that of the informant, Detective Sergeant Currie, the good faith of the two persons whom counsel called "the true accusers" is immaterial. Similarly, in this context it is immaterial that there was no evidence to show that the offence was committed. It would even be immaterial to s.27(a)(ii) that the magistrate was satisfied that the offence had in fact not been committed.

32. It is unnecessary to express a view upon a question which arose under s.27 in its earlier form and on which there has been some difference of opinion in the Supreme Court of New South Wales, namely whether, under the old form of s.27, the "interests of justice" exception would permit a magistrate to decline extradition in a case in which it appeared that the prosecution must fail. Yeldham J, in Daemar v. Parker at p.749, thought not. In Willoughby v. Eland Hope JA, at p.152, gave some support to the contrary view. McHugh JA, in Bates v. McDonald at p.102, expressed a clear opinion that an accusation would not be "in the interests of justice" if it was made to appear beyond argument that no case could be made out.
Any other reason

33. The insertion in s.27, by the 1985 amendments, of a reference to "any other reason" makes the section now comparable with s.18 of the Service and Execution of Process Act. That section provides that a magistrate may decline extradition where "for any reason, it would be unjust or oppressive to return the person". With that in mind, and freed of the limitations contained in s.27(a)(ii), we turn to the matters relied upon by the appellant and set out under the preceding heading.

34. Section 18 of the Service and Execution of Process Act has never been held to require the production of evidence that the offence has been committed. To so require would be to defeat the clear intent of the legislation in adopting a "backing the warrant" procedure. The same must be said of s.27 of the Extradition (Commonwealth Countries) Act. Item (i) of the six matters relied upon by the appellant is misconceived.

35. In relation to items (ii), (iii) and (vi), as might be expected, it is clear law that a court is justified in refusing extradition under the Service and Execution of Process Act where it positively finds that the offence was not committed. Such a finding is a compelling reason to conclude that it would be unjust or oppressive to extradite the person who is accused of the offence. What standard of satisfaction is necessary for such a finding?

36. In Aston v. Irvine [1955] HCA 53; (1955) 92 CLR 353 at p.366 the High Court of Australia referred to it being "unjust or oppressive to return the accused to Adelaide if the facts as they are alleged or appear make it clear that there was no indictable conspiracy". In O'Donnell v. Heslop, Madden CJ at p.170 spoke of a situation where the charge was "wholly misconceived" and "cannot possibly be right -- eg, where an alibi is proved". Hodges J at p.174 referred to "cases of an exceptional character in which the defendant is able so to satisfy the magistrate or judge by proving almost to a demonstration that it was not possible for him to have committed the offence charged". Cussens J accepted these illustrations but added at p.176 "... it was never intended that a defendant should be entitled to call for an exercise of discretion in his favour simply by proving facts which would amount to an ordinary defence to the charge at the trial, if the justice or the judge is satisfied that the prosecution is bona fide challenging those facts". In Re Alstergren and Nosworthy similar language was used, Lowe J saying at pp 29-30 that "it is not unjust or oppressive to return the defendant unless the evidence before the justice, for example, either demonstrates that the defendant has a complete defence to the charge or that the whole evidence which can be adduced by the prosecutor is before the justice and is such that no magistrate could on it properly find a case against the defendant fit to be sent for trial". See also per Martin J at p.34 and Fullagar J at p.38. A similar view has been taken in New South Wales -- see Ex parte Klumper (1966) 86 WN (Pt.1) (NSW) 142 at p 147, Walker v. Duncan (1975) 1 NSWLR 106 at p 110 -- by the Full Court of the Supreme Court of South Australia -- see Skewes v. Veen Huizen (1978) 22 ALR 101 at p.111-112 -- and by Mason J in the High Court -- see Ammann v. Wegener (1973) 47 ALJR 65 at p.67. The test developed in these cases has been applied to s.27 of the Extradition (Commonwealth Countries) Act in Willoughly v. Eland at p.152 and in Bates v. McDonald at pp.95, 100, 102; in our opinion rightly.

37. As we have said, the applicant for extradition did not purport to place evidence of the alleged offences before the magistrate or Pincus J. This is not, therefore, a case in which it could be said that the magistrate or Pincus J had the whole of the prosecution case and could conclude that there was no evidence upon which a magistrate could properly commit the appellant for trial. Of course, if the material before the magistrate had positively demonstrated, in relation to either charge, that the offence had not been committed, it would have been correct to hold that it would be unjust and oppressive to surrender the appellant on that charge. But this was not the case.

38. It is not correct to say, as the appellant submitted, that there was unchallenged evidence that the assault had not been committed. The evidence only established that particular witnesses had seen the appellant treat the child, upon various occasions, in a kindly way and that they had never seen him mistreat the child. Such evidence cannot logically negative the possibility that, upon some other occasion when none of those persons were present, the appellant assaulted the child. Items (ii), (iii) and (vi) therefore afford no basis for refusing extradition.

39. We have already dealt with the matter of the good faith of the complainants. Items (iv) and (v) do not assist the appellant.
Particulars

40. From time to time during the argument before us complaint was made by counsel for the appellant of the failure of the applicant for extradition to supply to the appellant adequate particulars of the alleged offences. In a case where an applicant for extradition elects not to place before the magistrate evidence of the guilt of the person sought to be extradited it would normally be proper for the magistrate to require the supply of such particulars as are necessary to enable the person to understand the charge against him. A failure by the applicant to comply with such an order may -- we propound no general rule, everything must depend upon the circumstances -- provide a sufficient reason for concluding under s.27(b) that it would be unjust or oppressive to order the surrender of the person.

41. In the present case, a complaint was made, when the matter was before Mr Hyde, about the absence of particulars. But the emphasis of the request was for the disclosure of the names of the proposed prosecution witnesses. There was no suggestion that the appellant did not understand the nature of the case made against him. The appellant did not seek a formal order for the supply of particulars. Nor did he seek any adjournment of the hearing before the magistrate. No complaint was made to Pincus J about the lack of particulars and it was not a ground of appeal to this Court. Under those circumstances this is not a case in which it should be held that the failure of the applicant for extradition to supply particulars of the alleged offences furnishes a reason to refuse surrender.

42. The appeal by Mr Narain against the order for surrender on the assault charge must be dismissed.
The Cross-Appeal

43. In the light of the principles we have already set out it is possible to deal shortly with the cross-appeal. We have already set out the summary of reasons of the learned judge concerning the detention charge.

44. With respect, the reason number (i) does not go to lack of justice, or oppressiveness. The delay might have to be explained at a hearing, but delay does not establish that the offence was not committed. Nor does the absence of a complaint for the period mentioned constitute injustice or oppressiveness in calling the appellant to account in a New Zealand court.

45. A similar observation may be made in relation to para.(ii) of the reasons. It may be that the period charged is too wide and this is relevant on the question of particulars. But that fact does not establish that the offence was not committed.

46. Paragraph (iii) of the reasons related to the merits of the charge, and this is a matter to be decided only in New Zealand. There was no direct evidence that no detention took place. There was only evidence that the particular witnesses knew nothing of the alleged detention.

47. Paragraph (iv) is a matter of greater significance. As we have said, in a proper case, the absence of particulars might justify a conclusion that it was unjust or oppressive to surrender a person. But, for the reasons already set out, that is not the present case.

48. Paragraph (v), in the present case, is a matter for trial, and not for declining to act on the warrant.

49. In our opinion, the primary judge erred in regarding the matters referred to as constituting a reason justifying the conclusion that it would be unjust or oppressive to surrender the appellant. The cross-appeal should be allowed, the order made by Pincus J in respect of the detention charge should be set aside and, in lieu thereof, it should be ordered that the application for review should be dismissed. The appellant must pay the respondents' costs both before Pincus J and in this Court.