Man ordered to be extradited to Australia to face assault charge

A109 Light Utility Helicopter flight with mayor Gisborne City from the air in November 2023.

A judge has ordered a Gisborne man to be extradited to Australia to face a serious assault charge arising from an alleged incident more than eight years ago.

Judge Warren Cathcart delivered his reserved decision last Tuesday, after a hearing in Gisborne District Court in March.

The 32-year-old man involved was granted a further 15 days of interim name suppression — the time available to him to appeal the decision if he chooses.

He is charged in Australia with intentionally causing grievous bodily harm to a complainant in a public carpark area in Perth on November 8, 2014.  The charge in Australia carries a maximum penalty of 20 years imprisonment.

The extradition order was sought by the Commonwealth of Australia, but opposed by the man who was represented by counsel Michael Lynch.

Mr Lynch conceded his client was eligible for surrender but pointed to the delay since the alleged offence, during which the man’s personal circumstances had changed significantly.

As per principles described in the legislation, it would be “unjust” and “oppressive” to surrender him now, Mr Lynch said. He focused in particular on the effect of the delay on his client’s ability to get a fair trial, saying it would be impossible.

Mr Lynch also contended that if the court decided his client should be extradited, the case should be referred for final determination to the Minister of Justice.

In his decision, Judge Cathcart said he was satisfied a surrender order was justified and that a referral to the Minister was not necessary or appropriate in this case.

There was definitely force in the argument about the delay and he did not accept the Commonwealth’s contention that the delays had been “adequately answered”. However, it was not enough to sway the decision against extradition.

In his view, none of the factors relied on in the opposition argument, individually or collectively, met the requirements of indicative principles set out in the legislation for the extradition to be “unjust”.

Comity between the two countries meant there was a justified expectation the trial court in Australia could be trusted to grant a stay of prosecution

if a trial would be unfair due to the delay.

The threshold for oppression was a high one, which this case fell “well short of ”, the judge said.

The prosecutorial delay was substantial but couldn’t be overemphasised.

Extradition would cause real hardship to the man and his family. However, even taken collectively the circumstances relied on under the “oppression” limb of the argument did not reach the necessary acute level of oppression required to avoid extradition. Neither was this a borderline case in which the delay might have swung the decision in favour of the defendant, Judge Cathcart said.