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Commonwealth of Australia v Craig [2022] NZDC 5215 (31 March 2022)

Last Updated: 28 August 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].


IN THE DISTRICT COURT AT PALMERSTON NORTH

I TE KŌTI-Ā-ROHE KI TE PAPAIOEA
CRI-2021-054-002704
[2022] NZDC 5215

COMMONWEALTH OF AUSTRALIA
Applicant

v

ELLEN RACHEL CRAIG
Respondent

Hearing:
17 March 2022
Appearances:
G Carter for the Applicant
P Murray for the Respondent
Judgment:
31 March 2022

RESERVED JUDGMENT OF JUDGE I C CARTER

Introduction


[1] The Commonwealth of Australia applies under the Extradition Act 1999 (the Act) to request the surrender of Ellen Craig from New Zealand to face a charge of murder. Ms Craig is alleged to have beaten her daughter, Tillie, to death on an unspecified day in July 1987, approximately 34 years ago.

COMMONWEALTH OF AUSTRALIA v ELLEN RACHEL CRAIG [2022] NZDC 5215 [31 March 2022]


[2] Ms Craig accepts that:

[3] Ms Craig opposes the application in two ways:

Procedure for Extradition to Australia


[4] The Act must be interpreted against its objects, which are, essentially, 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.

1 Extradition Act 1999, s 45(3). All section references are the Extradition Act 1999, unless otherwise stated.

2 Section 8(1)(c).

3 Section 48(4)(a)(ii).

[5] Section 12(d) of the Act states a specific objective in relation to Australian extradition requests to “provide a simplified procedure for New Zealand to give effect to requests for extradition from Australia”.

[6] The procedure for extradition from New Zealand to Australia is regulated by Part 4 of the Act. This was explained by the Court of Appeal in Mailley v District Court at North Shore:4 :
[7] The legislative framework under s 45 provides that the Court must determine whether certain threshold requirements are met to establish that the respondent is eligible for surrender. These include endorsement of the warrant and that the Court is satisfied that the respondent is an extraditable person in relation to the extradition country, and the offences are extradition offences in relation to the extradition country. If the section 45(2) threshold requirements are met and that there are no applicable restrictions under s 45(3) and no discretionary restrictions under s 45(4) the Court must make a surrender order unless section 48 applies to require referral of the case to the Minister.

[8] The Court of Appeal in Commonwealth of Australia v Mercer6 observed that the more streamlined procedure governing extradition to Australia is based, at least in part, on the “justified expectation” that the individual’s human rights would be protected at trial in Australia.7

4 Mailley v District Court at North Shore [2013] NZCA 266 at [7]- [8].

5 Mailley v District Court at North Shore [2013] NZCA 266.

6 Commonwealth of Australia v Mercer [2016] NZCA 503.

7 At [18].


Evidence


[9] I have considered evidence filed in the extradition application contained in:

and, if not detained in custody, may be eligible for financial support to meet living expenses.


(e) Affidavit of [Detective A] of New Zealand Police, attached to Interpol, confirming that Ms Craig is a New Zealand citizen, that she travelled from Australia to New Zealand on 3 November 1987 and identifying her residential address as an address in Palmerston North.

(f) Affidavit of [Sergeant B], of New South Wales Police, confirming the New South Wales statutory provisions under which Ms Craig is charged and that the current penalty that would be applied to Ms Craig, if convicted for offending in July 1987, would be life imprisonment.

[10] The allegations giving rise to the charge of murder are set out in detail in Detective Senior Constable Kilani’s first affidavit.

[11] Ms Craig was Tillie’s biological mother. In 1987 she was living in a rural commune that had a leader called Alexander Wilon. The commune is alleged to have the features of a cult. Tillie was living with her. There were a number of young children at the community and physical discipline of the children was encouraged. It was common for this to take place with a hard plastic tube.

[12] It is alleged that in July 1987, Ms Craig became angered by Tillie while she was sweeping. She beat her with a hard plastic tube. Tillie fell to the ground and Ms Craig is alleged to have continued to beat her, killing Tillie.

[13] It is alleged that Tillie’s body was disposed of by the commune leader, Alexander Wilon by burning it in a 44 gallon drum.

[14] Ms Craig was expelled from the commune some months later and she left for New Zealand in November 1987, never to return to Australia. It is accepted by Ms Craig in her affidavit that she changed her name for a period of around 3 years when she returned to New Zealand.
[15] The authorities were unaware of the death of Tillie until October 2019 after being approached by a witness. Tillie was never officially reported as a missing person at the time. Ms Craig notes in her affidavit at paragraph 21 she left Australia with very few possessions. There is no mention of her daughter.

[16] Ms Craig’s affidavit in opposition to surrender refers to the alleged offence said to have been committed on an unspecified day in July 1987, approximately 34 years ago. She says that she cannot remember many details going back that far, can only remember some of the people who were in her life in July 1987 and in respect of those she may only have ever known the first names given to Ms Craig, which may not be correct. In essence, she expresses concerns about the availability of witnesses and potentially relevant documents or photographs from 34 years ago. She has no family or friends in New South Wales other than a niece in Brisbane (but Ms Craig does not wish to involve her). She does not have a lawyer in Australia and cannot afford to pay for a lawyer as her financial means are limited.

[17] Ms Craig says that she cannot explain why the New South Wales Police inquiry did not begin until 2019. She acknowledges that after returning to New Zealand she changed her name by deed poll from late 1987 until either 1990 or 1991 when she reverted to her former and current name. She says there is no explanation for an 11- month delay between 9 December 2020 when a warrant to arrest was issued for Ms Craig in Australia and 16 November 2021 when Ms Craig was arrested in New Zealand.

[18] She refers to a number of physical and mental health concerns which she says would affect her ability to deal with Court proceedings and engage in the legal process. These are rheumatoid arthritis in most of her joint, respiratory issues, depression and anxiety, a previous diagnosis of clinical depression and a diagnosis of acute reaction to stress.

[19] A copy of a medical clinician’s notes was filed by email. The medical clinician’s notes relate to Ms Craig between the period and 28 January 2022 and 17 February 2022 when Ms Craig was detained in custody. The notes describe

treatment for physical and mental health issues. The clinician’s name and role are not identified.


[20] The 5 pages of notes are mostly concerned with Ms Craig’s attempt to commit suicide on 13 February 2022 using [details deleted], resulting in her being taken to hospital by ambulance for two days. The incident is described as a significant suicide attempt for which Ms Craig expressed relief that it had not been successful. The clinician notes that there was still a risk associated with her due to the circumstances of her charges.

[21] Ms Craig is reported to have said that the trigger for attempted suicide was the fact that her name suppression was going to be lifted on or about 17 February. She was wanting to prevent further harm to her family and she was fearful that she would be rejected by her family. Subsequent notes report that Ms Craig was happy that her suicide attempt was not successful as she had spoken with her family who told her that they all love her. She reported no current thoughts of self-harm.

[22] Some caution is required in relation to the information regarding Ms Craig’s medical and psychological status. The statements in her affidavit are self-reported and not confirmed by medical reports or other documents. This is explained, as submitted by counsel for Ms Craig, by the difficulties of communicating with Ms Craig while in custody in Arohata prison and housed in the “at risk” unit and difficulties for Ms Craig in obtaining medical records when she is in prison. The clinician’s notes were obtained by defence counsel under the Official Information Act 1982, and emailed to the court. The name and role of the clinician are not identified and are not produced through or explained by affidavit.

[23] Detective Senior Constable Kalani’s second affidavit details how the Police investigation started after a former cult member on 13 October 2019 provided a statement describing how the former cult member witnessed the murder of Tillie in July 1987. The Police investigation subsequently obtained further evidence which confirmed aspects of the witness’s statement and resulted in the warrant to arrest Ms Craig being issued on 9 December 2020. There is a description of the many steps

that were necessary for New South Wales Police to take over the 11-month period between 9 December 2020 and 16 November 2021 as part of the extradition process.


[24] It was necessary for Australian authorities to liaise with New Zealand about the possibility of obtaining a search warrant in New Zealand. New South Wales processes needed to be completed for obtaining approval to seek extradition from New Zealand including the seeking of authority to travel from the Minister. Extradition documentation was prepared as required for the New Zealand application. It was necessary to apply for and confirm the issue of a Criminal Justice Entry Visa by the Australian Home Affairs Minister to enable the extradited person to be allowed entry into Australia. New South Wales sent the extradition request to New Zealand in October 2021. Liaison between New South Wales and New Zealand Police was necessary to coordinate and plan the arrest of Ms Craig in New Zealand and of Ms Craig’s co-offender in Australia at about the same time so that neither person could be pre-warned. Following the grant of a ‘backed warrant’ in the Palmerston North District Court on 7 November 2021, Ms Craig was arrested on 15 November 2021.

Eligibility for surrender - assessment under s 45


[25] Section 45 of the Act relevantly provides;

45 Determination of eligibility for surrender


(1) Subject to section 44(4), if a person is brought before a court under this Part, the court must determine whether the person is eligible for surrender in relation to the offence or offences for which surrender is sought.

(2) Subject to subsections (3) and (4), the person is eligible for surrender if—
(3) The person is not eligible for surrender if the person satisfies the court—

(4) The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8.

(5) In the proceedings under this section, —

(6) ...

Threshold requirements


[26] A warrant for Ms Craig’s arrest issued in Australia was endorsed in New Zealand by Judge Rowe in the Palmerston North District Court on 8 November 2021 and has been presented to the Court.

[27] Ms Craig is an extraditable person, being a person who is accused of having committed an extradition offence against the law of an extradition country, Australia.

[28] The offence for which Ms Craig is sought to be extradited carries a maximum penalty of not less than 12 months imprisonment in both New South Wales, Australia, and in New Zealand. Ms Craig is charged with murder. In New South Wales, this offence carries a maximum penalty of life imprisonment.8 The offence which Ms Craig is accused of is an extradition offence in the extradition country, being an offence for which the maximum penalty is not less than 12 months imprisonment or any more severe penalty.

8 New South Wales Crimes Act 1900 No 40, ss 18 and 19A.

[29] If the alleged offending had taken place in the New Zealand jurisdiction, it would be murder under section 167 of the Crimes Act 1961 and punishable by life imprisonment under section 172 of the Crimes Act 1961. The “double criminality” requirement of the New Zealand definition of “extradition offence”9 is satisfied. The offence of which the person is accused is one where the actions which constitute the offence are equivalent to an offence where the maximum penalty is 12 months imprisonment or more in New Zealand.

[30] Ms Craig does not raise any mandatory restriction on surrender under section 7 of the Act and none apply. It is not claimed that an extradition of Ms Craig would be contrary to any treaty between Australia and New Zealand.

[31] I am satisfied that the threshold requirements in section 45(2) for eligibility for surrender are established.

Whether delay in all the circumstances makes surrender unjust or oppressive


[32] The ground advanced on Ms Craig’s behalf to resist the surrender order is that the discretionary restriction of surrender on the ground of delay under section 8(1)(c) of the Act, which applies by operation of section 45(4).

[33] Section 8 relevantly provides:

8 Discretionary restrictions on surrender


(1) A discretionary restriction on surrender exists if, because of—

(a) ...

(b) ...

(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.

(2) ...

9 Section 4(2).

[34] In this case the defence submit that the amount of time that has passed since the offence is alleged to have been committed is now substantial, at approximately 34 years.

[35] The defence further submit that in all the circumstances of the case it would be unjust or oppressive to surrender Ms Craig having regard to the time taken by Australian Police to progress the investigation and extradition request and other personal circumstances relating to Ms Craig.

[36] The issue is whether or not, having regard to all the circumstances of Ms Craig’s case, and the approximately 34 years since the offence is alleged to have been committed, it would be unjust or oppressive to surrender Ms Craig to face a trial in New South Wales.

[37] Under section 45(4), the onus is on Ms Craig to satisfy the Court that it should exercise the discretion to refuse surrender.

[38] Determination of whether delay is unjust or oppressive is a question of fact.10 Any factors which are relied on are required to have a nexus with the delay,11 for example conduct of a complainant in being initially unwilling to lay a complaint.12

[39] The Court of Appeal in Commonwealth of Australia v Mercer held that the injustice or oppression must either arise from, or be linked to the extradition, rather than the prospect of trial.13 The Court in Mercer also emphasised that evidence was required to establish the impossibility of a fair trial and that the threshold for stay of prosecution on the basis of delay is a high one and is rarely granted.

[40] It is well established 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

10 Smith v Police [2014] NZHC 2676 at [18]- [19].

11 Commonwealth of Australia v B [2016] NZHC 302 at [23].

12 Commonwealth of Australia v Mercer [2016] NZCA 503 at [43].

13 Commonwealth of Australia v Mercer [2016] NZCA 503.

circumstances and the issues of delay and good faith.14 Physical or mental health issues in themselves would not result in a discretionary restriction under s 8.15

Unjust


[41] In Mercer at [43] the Court of Appeal discussed the meaning of unjust for the purposes of section 8(1)(c), which are summarised as follows:16

[42] In Mercer the alleged offending took place between September 1985 and January 1986. Extradition was not requested until November 2014 with a warrant endorsed in May 2015. The Court found that the fact of a long delay alone did not suffice to establish a finding that extradition would be unjust.17

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

15 Mailley v District Court at North Shore [2013] NZCA 266 at [48].

16 Commonwealth of Australia v Mercer [2016] NZCA 503 at [43].

17 Commonwealth of Australia v Mercer [2016] NZCA 503 at [44].

[43] Where the opportunity to investigate alleged offending may be lost due to the passage of time, that factor may not make surrender unjust. In New Zealand v Johnston18 from the Federal Court of Australia (cited in Mercer at [41]) there were sexual offending allegations from 1973-1977, with the extradition hearing taking place in 2009. The Federal Court of Australia found that an assumption that evidence being lost to an extent that cross-examination of the complainant would inevitably be severely impaired did not make surrender to New Zealand unjust. The Court said19:

The loss of the capacity to carry out those investigations, if indeed that opportunity has been lost in any event, does not constitute prejudice of such seriousness to render the first respondent’s trial in New Zealand unfair. The effect of such postulated justice is a matter for the New Zealand Courts.

Oppression


[44] If the timeframe is “inexcusably dilatory” as in Kakis v Government of the Republic of Cyprus, then there is a possibility that a delay has had a negative effect.20 However, the Court of Appeal, in Mercer, considered that delay by the prosecuting country should be approached cautiously:21

As a matter of comity, the extradition Court should be wary of reviewing the actions of foreign authorities leading up to the request. The requesting state will usually be in a better position to assess the dilatoriness of its authorities and grant a remedy where appropriate, such as a stay for abuse of process. Prosecutorial delay, therefore, may in borderline cases tip the balance in favour of a finding of oppression, but it should not be overemphasised.

Delay by Australian authorities will usually be better left for the Australian Courts to assess and determine any consequences. If there were other factors contributing to the delay, such as the loss of evidential material discussed in Kakis, then the scales may shift.


[45] In Woodcock, which was also cited in Mercer, Lord Diplock stated that the oppression limb of the section must relate directly to hardship the person facing extradition would face as a result of a change in their circumstances between the

18 New Zealand v Johnston [2011] FCAFC 2, (2011) 274 ALR 509.

19 Johnston at [51].

20 Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634.

21 Mercer, above n 6 at [53], citing Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634.

alleged offending and the application for surrender. The change in circumstance must be directly linked to the delay.22 The Court in Woodcock stated:

...it seems to me in any event puzzling in present times why someone should be able to improve their chances of escaping trial by travelling abroad and then changing their circumstances in their new country of residence. Why, say, should an Australian who has committed a series of frauds in Sydney then be better placed to escape trial if he moves to England than if he moves to Darwin? The Court should to my mind be wary of paying excessive heed to “hardship to the accused resulting from change in circumstances” following upon the accused’s move to another country when equivalent hardship is likely to have occurred even had he remained in his country of origin.


[46] A change in personal circumstances is not unusual and is no more than the inevitable consequence of relocation, as recognised in Woodcock v Government of New Zealand23 and Commonwealth of Australia v Mercer24 and Curtis v Commonwealth of Australia.25 Further, reestablishment in another jurisdiction is not a “circumstance of the case” under the provisions of s 8.

[47] The Court of Appeal’s decision in Curtis involved a rare finding of oppression where a young man, alleged to have offended when he was 14-15, was taken from Australia by his family and did not return. In that case, there was five years of what was called “institutional delay” and particular relevance was placed on the fact that Mr Curtis did not leave Australia by his choice and his youth. Because of the particular circumstances of that case, the Court considered that extradition would be oppressive. If returned to Australia, the prospect of limited contact with his partner and family, unlikelihood of bail and likelihood of going to prison on remand were all considered to be not uncommon in extradition cases and on their own would not amount to oppression in cases where an adult decides to change jurisdictions. The central factor that produced oppression in Mr Curtis’s case was that Mr Curtis did not decide to change jurisdictions and had gone from being a child who was brought to New Zealand to being an adult in New Zealand.

22 Woodcock v Government of New Zealand [2003] EWHC 2668, [2004] 1 WLR 1979 at [26].

23 Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin).

24 Commonwealth of Australia v Mercer [2016] NZCA 503.

25 Curtis v Commonwealth of Australia [2018] NZCA 603.

[48] The decision of Johnston is also of assistance in assessing what amounts to oppression under s 8(1)(c). Johnston was summarised at [56] in Mercer. The Court considered difficulties relating to age, medical conditions, mental health, accommodation, separation from a spouse, and a crime-free life in Australia. These considerations were rejected by the Court as rendering Johnston’s extradition oppressive.26

[49] The Court of Appeal’s decision in Tukaki27 considers oppression in an appeal which failed on the oppression ground. The Court noted that whanau and cultural ties being swiftly ended against the respondent’s will would be a feature of almost all extradition cases.

Analysis


[50] Ms Craig’s personal circumstances 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 issue of delay. There is no such clear nexus to delay in relation to Ms Craig’s physical and mental health issues and they are not relevant to whether surrender would be unjust or oppressive.

[51] Even if that were not so, Ms Craig would be able to access medical and psychiatric treatment through Australian authorities just as she has been able to do when in custody in New Zealand. Her conditions were managed prior to Ms Craig’s arrest in New Zealand. Further, Ms Craig’s attempted suicide in mid-February was triggered by the imminent lifting of name suppression and effect on her family and was not motivated by the extradition application. It is not uncommon for defendants to suffer depression or to be stressed/anxious by the trial process. The evidence of Ms Craig’s physical and mental health does not reach the level of establishing that she would not be able to participate or engage in the trial process.

[52] The principle of comity which underpins Part 4 of the Extradition Act 1999 means that there is a justified expectation that a defendant’s human rights (including

26 New Zealand v Johnston [2011] FCAFC 2, (2011) 274 ALR 509.

27 Tukaki v Commonwealth of Australia [2018] NZCA 324

the right to a fair trial) will be upheld by the Australian federal, state and territory jurisdictions. A New Zealand Court cannot infer that a fair trial is impossible without clear and straight forward evidence sufficient to meet the required standard of proof on the balance of probabilities. That issue will almost always be best addressed and resolved in the appropriate Australian Court.


[53] The Australian courts are capable of dealing with delay issues raised by Ms Craig through any stay application which she might make in Australia. There is a high degree of comity between the laws of Australia and New Zealand.28 The ability to apply for a stay of prosecution is available to Ms Craig in Australia.29 It is not suggested by Ms Craig that a fair trial process is unavailable to her due to a lack of procedural safeguards. As the Court of Appeal has observed, it would be highly unlikely that such a conclusion would be drawn in a Part 4 case.

[54] Tillie’s murder came to the attention of Australian authorities on 13 October 2019. A warrant for Ms Craig’s arrest was issued 14 months later. Those 14 months saw the New South Wales Police undertake the investigations necessary to implement said warrant for Ms Craig’s arrest. The backed warrant was issued eleven months later by Judge Rowe in New Zealand. Detective Senior Constable Kilani’s second affidavit summarises the reasons for this eleven-month period:

28 The high level of commonality between Australia and New Zealand’s legal systems and Australia’s ability to safeguard a defendant’s fair trial rights was discussed in Radhi v Commonwealth of Australia [2015] NZHC 3347 at [44]- [45].

29 See, for example, Jago v District Court (NSW) [1989] HCA 46 where the High Court of Australia set out the test for a stay of prosecution which, in counsel’s submission, is essentially the same as in New Zealand.

(d) waiting for authorisation for Ms Craig to enter Australia upon arrest from the Department of Home Affairs; and

(e) co-ordinating Ms Craig’s arrest with that of her co-offender.

[55] There is no unreasonable delay here. The New South Wales Police acted promptly in beginning an investigation after information was brought to their attention through a witness coming forward. Having regard to the necessary legal and administrative steps taken as part of the extradition process, including liaison and coordination as between Australian and New Zealand Police and legal counterparts, in my view the New South Wales Police acted within a reasonable time. The 11-month period is not an unreasonable period of time in the circumstances and does not reach the threshold of being unjust or oppressive. The Australian authorities have certainly not been “inexcusably dilatory”.

[56] It is submitted on behalf of Ms Craig state that Tillie’s father, Mr Stanhope was an active party in Family Court proceedings regarding Tillie and her care in 1987. The submission is that it is inconceivable that Mr Stanhope (who is understood to be still alive) has not raised issues regarding Tillie’s whereabouts. It is implied that Australian authorities should have begun an investigation earlier. There is evidence in Detective Senior Constable Kilani’s first affidavit that Mr Stanhope was an active party in Family Court proceedings regarding Tillie and that he made a number of attempts in 1987 and in the years following to locate Tillie.

[57] However there is no evidence that Mr Stanhope made a formal complaint to New South Wales Police or otherwise took any step that might have caused New South Wales Police to begin a an investigation related to Tilley’s whereabouts. The uncontradicted and unchallenged evidence before the Court is that New South Wales Police did not become aware that Tilley was missing until 2019.

[58] Ms Craig’s case is that she has re-established herself in New Zealand and that the lengthy delay in all the circumstances is unjust or oppressive. In addition, it is submitted on Ms Craig’s behalf that she would likely face a lengthy custodial remand in Australia where she has no family, friends or support, before she could be tried on

charges that she denies. Had Ms Craig remained in Australia after 1987, the hardship resulting from her change in circumstances after being charged would have been equivalent.


[59] As noted in the Woodcock case, Ms Craig should not be able to improve her chances of escaping trial by travelling to another country and then change her circumstances in a new country of residence. Equivalent hardship arising out of a trial is likely to have occurred if she had remained in Australia. The fact that Ms Craig returned to New Zealand and re-established herself in Palmerston North does not bear on the question of whether a fair trial is possible. There is nothing about Ms Craig’s circumstances which suggests that surrender would be unjust or oppressive.

[60] The absence of any family or other support in New South Wales carries little weight. This factor is present in all extradition cases. Means tested legal aid is available in Australia for which Ms Craig may be eligible to enable Ms Craig to obtain representation by a lawyer. If not detained in custody, Ms Craig may be eligible for financial support to meet living expenses.

[61] Finally, the extradition request arises from a serious charge alleging that a mother violently murdered her daughter. The fact that Ms Craig was arrested approximately 34 years later, with no substantive injustice or oppression of the kind recognised by the courts, cannot act as a bar to her surrender.

[62] I conclude that the passage of time and other factors raised on Ms Craig’s behalf do not satisfy the unjust or oppressive test under section 8 and surrender should be ordered.

Referral to Minister under s 48(4)(a)(ii)


[63] Once a court has decided on eligibility to surrender, it must (under s 47) make a surrender order unless the case is referred to the Minister under s 48. Section 48 directs referral to the Minister in certain circumstances. Ms Craig is a New Zealand citizen. Where there are grounds for making a surrender order against a New Zealand

citizen and other criteria in s 48(1) apply, the Court must refer the case to the Minister. Section 48(3) removes this requirement where the extradition country is Australia.


[64] There remains however a general residual discretion to refer a case to the Minister under s 48(4)(a)(ii) which states:

If-

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

in every other respect the court is satisfied that the ground for making a surrender order exist,-

the court may refer the case to the Minister in accordance with subsection (5).


[65] In Mailley v District Court at North Shore the Court of Appeal held that physical and mental health issues including suicide risk could amount to compelling or extraordinary circumstances for the purposes of section 48(4)(a)(ii).30 Whether such circumstances are established are a question of fact and degree in each case.31

[66] “Compelling circumstances” are those which are very persuasive or very strong.32 “Extraordinary circumstances” are those which are out of the ordinary, unusual, uncommon or striking.33

[67] In litigation subsequent to the Mailley Court of Appeal decision cited above and in the same extradition proceeding involving Mr Mailley, the High Court held that the inquiry into whether there are circumstances that are “extraordinary or compelling” must consider the circumstances both individually and cumulatively.34

30 Mailley v District Court at North Shore [2013] NZCA 266.

31 At [62].

32 Mailley v District Court at North Shore, above n 1, at [62].

33 At [62].

34 Mailley v District Court at North Shore [2014] NZHC 2816 at [102, [103].

[68] It was submitted on behalf of Ms Craig that the cumulative effect of the fragility of Ms Craig’s physical and mental health and the rigours of extradition to Australia with likely detention in custody and with no support network, justifies referral to the Minister.

[69] Factors such as detention in custody and lack of a support network do not meet the s 8 requirement of “unjust or oppressive” whether individually or cumulatively having regard to the authorities cited above. These factors are present in every extradition case. They cannot amount to compelling or extraordinary circumstances for the purposes of section 48(4)(a)(ii).

[70] Ms Craig’s physical and mental health is referred to in limited and incomplete evidence which must in my view be treated with caution. If accepted as correct on the face of Ms Craig’s affidavit and the clinician’s notes that have been provided, it would appear that Ms Craig has lived with physical and mental health issues for some time and has received treatment and medication to manage her conditions. Medical and psychiatric treatment and medication would be available through Australian authorities just as there has been through New Zealand authorities.

[71] I have considered Ms Craig’s physical and mental health issues individually and cumulatively in relation to one another and in relation to the other factors relied on of detention in custody and lack of a support network. I conclude that Ms Craig’s physical and mental health issues, detention in custody and lack of a support network in New South Wales, whether viewed individually or cumulatively, are not compelling or extraordinary circumstances that would make it unjust or oppressive to surrender Ms Craig.

[72] Ms Craig has not established compelling or exceptional circumstances which would make it unjust or oppressive to surrender her and I exercise my discretion not to refer her case to the Minister of Justice under section 48(4)(a)(ii).

Determination of eligibility for surrender


[73] For the reasons given above I am satisfied that Ms Craig’s has not established grounds for referral to the Minister under section 48(4)(a)(ii) and that she is eligible for surrender.

[74] In accordance with the procedure in sections 46 and 47 of the Extradition Act 1999 the Court:

Judge I C Carter

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 31/03/2022

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