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Wolf v The Federal Republic Of Germany HC Auckland M.5-SW00 [2001] NZHC 287; [2001] NZAR 536 (12 April 2001)

Last Updated: 13 November 2013

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M.5-SW00

UNDER the Judicature Act 1908 and its amendments in 1972 and 1985

IN THE MATTER of the Extradition Act 1999 and proceedings to extradite WILLI WOLF to the Federal Republic of Germany

AND IN THE MATTER of an application for a writ of of habeas corpus ad subjiciendum

AND IN THE MATTER of an application for judicial review of a decision of the District Court at Auckland

BETWEEN WILLI WOLF
Plaintiff

AND THE FEDERAL REPUBLIC OF GERMANY
Defendant

Hearing: 2 March and 6 March 2001

Counsel: James Boyack for plaintiff
Christine Gordon for defendant

Judgment: 12 April 2001

JUDGMENT OF POTTER J

[1] The plaintiff Willi Wolf has filed applications by way of a writ of habeas corpus and for judicial review of a decision of Judge S.A. Thorburn given on 22 December 2000 following a hearing in the District Court on 19 and 20 December 2000. Judge Thorburn decided that Willi Wolf is eligible for surrender to the Federal Republic of Germany pursuant to s.24(1) Extradition Act 1999 (“the Act”).

[2] Mr Wolf contends that the District Court Judge took into account irrelevant matters, failed to consider certain relevant matters, and misdirected himself on matters of law. He seeks an order setting aside or declaring invalid the decision of the District Court Judge, or alternatively an order that the District Court Judge reconsider the whole or specified parts of his decision.

[3] The defendant contends that the decision of the District Court Judge should be upheld, and further that the Court in its discretion should decline the plaintiff relief on his applications because of his failure to exercise his statutory remedy by way of appeal under s.68 of the Act.

Procedural background

[4] The decision of the District Court is dated 22 December 2000. Section 68 provides a right of appeal on a question of law only by way of case stated. The appeal must be filed within 15 days of judgment. Mr Wolf did not appeal. On 4 January 2001, he filed an ex parte application and obtained interim orders on 10 January 2001 staying further action by the Crown in consequence of the District Court judgment, until further decision of this Court. On 7 February 2001 counsel for Mr Wolf sought and obtained an adjournment in the face of opposition from the Federal Republic of Germany; an adjourned hearing date 2 March 2001 was allocated.

Factual background

[5] I adopt the background largely from the District Court Judge’s decision. Mr Wolf is a German national, born 24 January 1949. In 1981 at the age of 32 he committed in Germany a crime of robbery with robber-like extortion. A German Court found him guilty and on 15 February 1982 sentenced him to 6 years imprisonment.

[6] On 4 November 1983 he escaped from prison. He arrived in New Zealand in September 1986 under the assumed name of Uhlmann and has remained in New Zealand since then. He married and obtained permanent residency. There are two children of the marriage, a boy aged 11 and a girl aged 8. He and his wife separated in 1995. The German Police authorities were alerted in 1997 as to Mr Wolf’s whereabouts and his true identity. A warrant for his arrest under the Act was issued on 7 August 2000. Mr Wolf was then brought before the District Court for the Court to determine pursuant to s.24(1) of the Act whether he was eligible for surrender in relation to the offence for which surrender was sought by the Federal Republic of Germany.

Jurisdiction

[7] The Act contemplates both habeas corpus and judicial review procedures, as well as appeal. By s.26, if the Court determines under s.24 that the person to be extradited is eligible for surrender, the person is to be so advised and has 15 days within which to make an application for a writ of habeas corpus, or appeal the decision. Section 36(1)(b), which relates to persons not surrendered within 2 months of the issue of the warrant or determination by a Court under the Act, contemplates appeal, application for review or application for habeas corpus. In these proceedings little turns on whether the application is for writ of habeas corpus or judicial review. There is authority that habeas corpus proceedings are available to correct error of law: Armagh v Government of Nigeria [1968] AC 192; Aitkinson v USA Government (HL) [1971] AC 197. Judicial review provides an overlapping remedy.

[8] Judicial review principles apply. The appellant is required to show that the District Court Judge acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter, or was plainly wrong in determining pursuant to s.24(1) of the Act that Mr Wolf is eligible for surrender to the defendant.

Grounds for Review

[9] Central to the plaintiff’s submissions is the discretion vested in the Court by s.8 of the Act. The plaintiff claims in paragraph 10 of his statement of claim that the District Court Judge failed to take account of the following relevant considerations -

[a] The unusual upbringing of the plaintiff in post-war West Germany; and

[b] The impact of that upbringing on the plaintiff’s need and determination to be a good father; and

[c] The proven good relationship of the plaintiff with his children; and

[d] The children’s own need for regular contact with their father; and

[e] The extreme suffering amounting to oppression the plaintiff will experience as a consequent of [a] to [d] if he is extradited.

[10] The plaintiff further claims that His Honour the Judge misdirected himself by taking into account irrelevant matters as follows -

[a] That the exercise by the Minister of Justice of the Minister’s discretion under s.30 circumscribed the Judge’s exercise of the Court’s discretion under s.8;

[b] Applying an overly restrictive definition of “oppressive” by reference to the Concise Oxford dictionary (9th edition) rather than to case law;

[c] Finding that to show oppression the applicant must show that it goes beyond the natural and foreseeable consequences of his own actions.

[d] As to the standard of proof to be applied pursuant to s.8(1)(c), distinguishing between “conviction” cases and “accusation” cases and thereby further raising the standard of proof which is on the balance of probabilities.

The Court’s discretion under s.8 of the Act

[11] Section 8 provides -
“Discretionary restrictions on surrender

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

(a) The trivial nature of the case; or

(b) If the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or

(c) The amount of time that has passed since the offence is alleged to have been committed or was committed, -

and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.”

[12] Paragraph (c) is the relevant provision in this case. Nearly 20 years have elapsed since the offence for which extradition is sought, was committed in the Federal Republic of Germany.

[13] The District Court Judge concluded that the matters of a humanitarian nature raised by the plaintiff were matters within the realm of the unfettered discretion of the Minister under s.30 of the Act, and were not within his discretion under s.8.

[14] It is important because of the emphasis placed by the plaintiff on the humanitarian aspects of his case, to consider the nature and limits of the Court’s discretion under s.8. A consideration of the place of s.8 in the scheme of the Act is helpful and instructive.

[15] Sections 7, 8 and 9 of the Act relate to Restrictions on Surrender. Section 7 details situations in which mandatory restriction on surrender exists. Section 8 details situations in which discretionary restriction on surrender exists.

[16] Section 9 provides -

“Parts 3 and 4 set out the circumstances in which the mandatory and discretionary restrictions on surrender set out in sections 7 and 8 are to be considered, and who makes the decision in any particular case as to whether a restriction applies.” (Emphasis added)

[17] Section 24 brings the matter before the Court to determine eligibility for surrender following a request by a foreign or commonwealth country transmitted to the Minister in one of two ways.

[18] Under s.24 the Court must determine whether the person is eligible for surrender, in relation to the offence or offences for which surrender is sought.

Subsection (2) requires the Court to determine the adequacy of evidential and compliance matters.

Subsection (3) provides that the person is not eligible for surrender if mandatory restrictions on surrender apply or the surrender would not be in accordance with the provisions of any treaty between New Zealand and the extradition country (none applies in this case).

Under subsection (4) the Court may determine that the person is not eligible for surrender if the person satisfies the Court that a discretionary restriction on surrender of the person applies under s.8.

[19] Under s.26 if the Court determines that the person is eligible for surrender it must issue a warrant for the detention of the person and advise the Minister of Justice.

[20] Under s.30 the Minister must then determine whether the person is to be surrendered.

[21] The relevant provisions of s.30 are -

“(1) If the Court issues a warrant for the detention of a person . . . the Minister must determine in accordance with this section whether the person is to be surrendered.”

Subsection (2) covers situations where the Minister must not determine that the person be surrendered.

Subsection (3) gives the Minister a discretion in a number of situations if -

“(a) It appears to the Minister that the person may be or has been sentenced to death by the appropriate authority in the extradition country, and the extradition country is unable to sufficiently assure the Minister that -

(i) The person will not be sentenced to death; or

(ii) If that sentence is or has been imposed, it will not be carried out; or

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

(c) The person is a New Zealand citizen . . (not relevant in this case) -

. . .

(d) Without limiting section 32(4) (not relevant in this case) 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.” (Emphasis added)

[22] The process governing the extradition of any person advances in stages from the initial request for extradition transmitted to the Minister, to the final decision of the Minister whether to surrender the person. The initial and final steps reflect the essential inter-state nature of the process. However, at an interim stage the Court exercises jurisdiction to exclude those cases where evidential and procedural requirements have not been satisfied, where there is a statutory mandatory restriction on surrender or the surrender would not be in accordance with a treaty between New Zealand and the extradition country, and where the Court exercises the discretion conferred by s.8, against surrender.

[23] In exercising that discretion, once the Court is satisfied that at least one of the three criteria in s.8 is present, it must have regard to all the circumstances of the case in considering whether it would be unjust or oppressive to surrender the person. If the Court determines that the person is eligible for surrender then a warrant must issue. Once the warrant issues the Minister must make his determination pursuant to s.30. So the Minister’s final determination is required only in those cases where the Court in the exercise of its discretion orders surrender and a warrant issues.

[24] Included in the matters that may invoke the Minister’s discretion are, under subsection (3)(b), the s.8 discretionary restriction on surrender (where the circumstances of the case make it unjust or oppressive to surrender); and under subsection (3)(d), compelling or extraordinary circumstances of the person including without limitation those relating to the age or health of the person which would make it unjust or oppressive to surrender.

[25] In comparing and contrasting the discretionary powers vested in the Court by s.8 and the Minister by s.30, the wording of the sections themselves points to the Minister as the last decision making step in the extradition process, having in addition to the discretionary powers vested in the Court by s.8, a further power arising from the circumstances of the person. The discretions of both the Court and the Minister may be exercised only when the relevant matters give rise to a finding of unjust or oppressive to surrender, but the clear inference from a comparison of the two provisions is that the Minister’s discretion at the final stage of the process may be based on wider considerations including humanitarian circumstances of the person concerned. By deduction therefore, the discretion of the Court under s.8 which must have regard to all the circumstances of the case, excludes the circumstances of the person, which are reserved for the Minister at the final stage of the process.

[26] The staged process and the parts played by the decision-makers at the various stages of the process are emphasised by the provisions of s.9 which refers to the mandatory and discretionary restrictions on surrender in Parts 3 and 4 and who makes the decision in any particular case.

[27] In a recent decision in Hong Kong Special Administrative Region of the People’s Republic of China v Yuen, Kwok-Fung (Unreported, High Court Auckland, A.149/00, 30 October 2000) Paterson J had cause to consider in a different context, the same provisions of the Act. There was an appeal from the decision of the District Court not to exercise its discretion under s.8 in favour of Mr Yuen, but to exercise a discretionary power based on Article 7(1)(d) of the Agreement for the Surrender of Accused Convicted Persons Between the Government of New Zealand and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China. The issue on appeal was whether the Court, having declined to exercise its discretion in favour of Mr Yuen under s.8, had an additional discretion under the treaty. His Honour stated at paragraph [28] -

“The statutory equivalent of Article 7(1)(d) is contained in s.30(3)(d). The Minister is able to take into account compelling or extraordinary circumstances of the person including without limitation, those relating to the health of the person, in determining whether it is unjust or oppressive to surrender the person. (Emphasis added) . . . On the other hand the Court has no express power to consider humanitarian considerations. Its power to consider discretionary restrictions on surrender as contained in s.8 are limited to the four circumstances set out in the two subsections of that section . . . The Legislative having specified the particular powers which the Court had in respect of discretionary restrictions on surrender, intended to exclude humane considerations from those powers.”

[28] The plaintiff seeks to distinguish the decision in Yuen because there Mr Yuen sought to include within the discretion of the Court, matters raised under a treaty, in addition to the matters specified by s.8. In this case the defendant contends that the matters he raises are circumstances of the case which call for consideration under s.8.

[29] However, the approach I take to the interpretation of the relevant provisions of the Act mirrors the approach of Paterson J. In distinguishing who is to take decisions under the Act as required by s.9, i.e. whether the Court or the Minister, and what matters are within the discretion of each, the Act excludes humanitarian considerations from s.8. Humanitarian factors relating to the person whom it is sought to extradite, which may make extradition unjust or oppressive, are matters for the Minister under s.30(3)(d).

[30] It follows that I do not accept the plaintiff’s submission that by taking into account the Minister’s role the learned District Court Judge so restricted his consideration of s.8(1)(c) matters that he did not consider them sufficiently or at all, as a matter of law.

[31] Having made determinations concerning the limit of the Court’s jurisdiction in the exercise of its s.8 discretion, I turn to consider the matters raised by the plaintiff as being not, or not properly, considered by the District Court Judge in the exercise of his discretion. These are set out in paragraph 10 of the statement of claim and in paragraph [9] of this judgment; the unusual upbringing of the plaintiff in post-war Germany, the impact of that upbringing on the plaintiff’s need and determination to be a good father, his proven good relationship with this children, the children’s own need for regular contact with their father, and the extreme suffering amounting to oppression the plaintiff will experience as a consequence of the proceeding matters if he is extradited. These, in my view, are all “circumstances of the person” and in accordance with the above analysis, matters within the ultimate discretion of the Minister. They are not matters relevant to the exercise by the Court of its discretion under s.8.

[32] The Judge stated at paragraph 29, correctly in my view -

“ . . . the humanitarian matters and the call for mercy, which the respondent’s case really amounts to, ought to be matters for the Minister in the scheme of the Act.”

[33] However, before he reached that conclusion, he dealt specifically with the situation concerning the children in paragraphs 23-28 of his judgment. He looked at the children’s situation from two perspectives, that the children are likely to be negatively affected by their father’s extradition, which in turn would be likely to be emotionally oppressive to him.

[34] He considered the position of the children in terms of the United Nations Convention on the Rights of the Child 1989 which provide in Articles 3 and 9 as follows -

“Article 3

(1) In all actions concerning children, whether undertaken by public or private Social Welfare institutions, Courts of Law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 9

(1) State Parties shall ensure that a child not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child . . .”

[35] The Judge appeared to accept the submission from counsel for the plaintiff that by analogy with Tavita v The Ministry of Immigration (1993) 11 FRNZ 508 and Puli’uvea v The Removal Review Authority (1996) 14 FRNZ 322 which are cases dealing with New Zealand’s immigration legislation, the interests of the children would be a factor for consideration when the Court exercises its discretion under s.8. Counsel for the defendant accepted before this Court that the Courts would most likely be required to adopt the same principles as were found to apply in the above cases, when considering an application for extradition. The person whose immigration status is in issue, and the person whose extradition is sought, both face the potential deprivation of their right to be in New Zealand. But counsel submitted, quoting Puli’uvea that a balancing exercise was required of all the competing and relative interests involved in the case, one of which would be the rights of children.

[36] Counsel referred to Elika v The Minister of Immigration [1996] 1 NZLR 741 for authority that there was nothing in the convention that rendered the welfare of the children the paramount consideration in deciding whether or not a removal order should be enforced. Thus it was submitted, in the context of an Act whose object is to provide legislation for the surrender of an accused or convicted person from New Zealand to an extradition country, it would create a dangerous precedent if the Courts exercised their discretion under s.8 on the basis that it would be unjust and oppressive to surrender the person solely on the grounds that the interests of the children would be affected.

[37] Counsel for the plaintiff disagreed, relying on M v Minister of Immigration (unreported, Wellington High Court, AP.84/99, 17 August 2000, Goddard J), in which Her Honour referred to the International Covenant on Civil and Political Rights 1966 and the Convention on the Rights of a Child 1989 as clothing -

“. . . the rights of children with a primacy, even if not with paramountcy. Therefore, whenever the interests of children arise, these interests must be given weight as a primary consideration.”

Her Honour held that the family unit as the children of the appellant knew it, notwithstanding the parents’ separation, would be destroyed and their interests undoubtedly impaired if the appellant was deported.

[38] That case involved an appeal against a decision of the Deportation Review Tribunal dismissing the appellant’s appeal against a deportation order made by the Minister of Immigration following the appellant’s conviction for rape. The Deportation Tribunal reached a finding on the evidence that the best interests of the children would be served by the appellant remaining in New Zealand, but held that other circumstances and considerations required a different result.

[39] The Judge found that the Tribunal had erred in law by not providing sufficient weight to the best interests of the children in reaching its decision.

[40] In this case the District Court Judge considered at paragraph 28 the evidence before him in relation to the children. He found -

“. . . The issue of the children’s welfare is arguable and thus the evidence of their oppression or detriment is rather equivocal. I therefore do not put much weight on the submissions about the children’s welfare and I agree with Ms Gordon’s view that before such a matter could be factored in there would need to be sound evidence.”

[41] I have reviewed carefully the evidence that was before the District Court Judge. Mr Wolf has regularly exercised weekend access to his two children together with access during school holidays, from the time of separation to the time of his arrest. The Judge referred in paragraph 23 of his judgment to Mr Wolf’s evidence of the richness of his relationship with his children, the expert opinion evidence of Mr Aukett as to the detrimental effect on both parent and children of an enforced and permanent separation, and the affidavit evidence by a Church Pastor and friends supportive of Mr Wolf and his relationship with the children. However, he noted in paragraph 28 conflicting evidence which led him to the conclusion set out in the preceding paragraph.

[42] This contrasts with the situation in M v Minister of Immigration where the findings of the Deportation Tribunal in relation to the interests of the children were clearly in favour of keeping intact the family unit, yet the Tribunal declined the appeal against the Minister’s deportation order. Here, His Honour made no such clear findings. There was conflicting evidence about the relationship of Mr Wolf with his children and about the likely detriment to them of an enforced separation from their father. The District Court Judge reached a view of the relevant evidence. It is not for this Court to intervene where there was evidence before the District Court Judge which could provide a proper basis for his findings, unless he was plainly wrong. That situation does not arise.

[43] The District Court Judge thus did not fail to regard the interests of the children as a matter of primary consideration. He turned his attention to their situation alerting himself to the impact of the Convention on the Rights of the Child and the principles established in Tavita and Puli’uvea. Ultimately the Judge was not satisfied that Mr Wolf had established the evidential basis for his claim that the interests of the children would be adversely affected by his extradition or that it would be against the will of either of the children to be separated from their father.

[44] The evidence in respect of Mr Wolf’s relationship with his children as it affects him, is of course a different matter. It gives rise to matters of humanitarian consideration which I have determined, as did the District Court Judge, are within the discretion of the Minister under s.30(1)(d).

Test of Oppression

[45] The plaintiff submitted that the Judge misdirected himself in adopting an overly restrictive definition of the adjective “oppressive” by reference to the Concise Oxford dictionary (9th edition) rather than by reference to case law. Further, that he restricted the meaning of oppressive by reference to a requirement that to show oppression the applicant must show that it goes beyond the natural and foreseeable consequences of his own actions.

[46] At page 34 of his judgment the Judge referred to the definition of oppressive by Fisher J in Police v Thomas (1989) 4 CRNZ 454. Fisher J said at page 457 -

““Oppressive” generally signifies hardship to an accused resulting from changes in his circumstances that have taken place during the period under consideration.”

He then referred to the Oxford Dictionary definition of oppression -

“Prolonged, harsh or cruel treatment, and “oppressive” as harsh or cruel circumstances that are difficult to endure.”

He adopted “as a useful starting point”, the inquiry whether the oppression alleged by Mr Wolf represents harshness, cruelty or difficulty of endurance that goes beyond the natural and foreseeable consequence of his action. He concluded that the plight in which Mr Wolf finds himself is and always was thoroughly foreseeable and an entirely natural consequence of his own actions and that Mr Wolf had failed to discharge the burden of demonstrating that the passage of time, having regard to all of the circumstances, had given rise to oppression of such degree that would persuade the Judge to declare a restriction on surrender.

[47] In Kakis v Government of Cyprus [1978] 2 All ER 634 where the Court considered very similar wording to that in s.8, under s.8(3) of the Fugitive Offenders Act 1967, at page 638 Lord Diplock stated -

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

Lord Diplock here was contrasting the meanings of “unjust” and “oppressive”, as was Fisher J in adopting similar definitions in Police v Thomas.

[48] Lord Diplock continued -

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

[49] In Kakis the Court was considering extradition in a situation where Kakis was to stand trial for murder allegedly committed many years previously. The Court found it would be unjust and oppressive to return him to Cyprus. Importantly, the delay meant that crucial witnesses would not be available to give evidence.

[50] Mr Boyack for Mr Wolf made detailed submissions about the meaning of “oppressive” with particular reliance on the judgment of the Federal Court of Australia in New Zealand v Venkataye (unreported, Fed No.387/95, 30 June 1995). He noted the Court’s view that the gravity of the offence charged is a relevant and very important consideration but the Court did not regard it as a predominant one; that financial hardship, domestic upheaval and emotional distress are matters the Court can take into account; that the cause of the delay and the consequences flowing from it are relevant and perhaps decisive, and that while the Court observed that if the delay is not due to the conduct of the alleged offender, the consequences of the delay are more significant than its cause, that was only one consideration in the total mix. (Venkataye was not a case of an accused person having fled the jurisdiction in which the offences were said to have occurred or having concealed his or her identity).

[51] In oral submissions Mr Boyack stated that the District Court Judge had not considered financial hardship, domestic upheaval and emotional distress which Mr Wolf would endure if extradited to Germany, these being matters referred to by the Court in Venkataye. He also pointed to the delay of 3 years approximately between July 1997 when the German Police were first advised of the respondent’s presence in New Zealand and 7 August 2000 when the warrant for his arrest was issued by the District Court, and submitted the applicant’s oppression was exacerbated by this delay because it permitted him to develop an even closer tie with his children during this period.

[52] It is relevant to observe that in Thomas after providing the definition of oppressive on which Mr Boyack would place some weight, Fisher J observed at page 458 -

“There is, I think, a strong element of balancing the nature and surrounding circumstances of the alleged crime and associated conduct, on the one hand against the degree of hardship to the prisoner and his dependants, on the other. If the hardship is entirely disproportionate to the modesty of the crime and associated conduct, that will count in the prisoner’s favour.”

He also stated -

“. . . it will only be in exceptional cases that the Court should exercise its discretion to discharge a prisoner under s.19. The reluctance to intervene may be illustrated by the cases of quite serious hardship (e.g. Gorman (supra)) and extraordinary delays (e.g. Bieleski (supra) - 20 years) in which prisoners have nevertheless been returned to commonwealth countries to face trial.”

[53] Although there has been a considerable lapse of time between Mr Wolf’s offending and imprisonment in Germany in 1981/82 this is not a situation such as that before the Court in Kakis where the Court was concerned with the issue of injustice resulting from the inability for Mr Kakis to receive a fair trial. The situation must be viewed in the round. Hardship to the prisoner must be considered proportionately in all the circumstances of the case. The crime here is a serious one. The delay in the Federal Republic of Germany seeking to bring the plaintiff to justice has been essentially of the prisoner’s own making (the alleged 3 year delay of the defendant, is disputed, and cannot be in any event regarded as significant in the overall situation where an extradition treaty does not exist between New Zealand and Germany), and the close bonding the plaintiff claims with his children was, on his evidence, well established before that latest passage of time. When Mr Wolf made good his escape from confinement in Germany in 1983 and settled in New Zealand under an assumed name he took the risk that the situation he now confronts could occur at any time.

[54] Despite his best efforts to make something of the definition of “oppressive” adopted by the District Court Judge, I am not convinced that Mr Boyack’s arguments amount to much. I do not consider the Judge can be criticised for referring to the Oxford dictionary for assistance with a definition which is not provided by the statute. It is also interesting to observe that in Lewis v Wilson (1987) 32 A Crim R 118, 112 the Court described oppression as a word of considerable strength implying -

“Very harsh or grossly unfair conduct crushing or trampling down another person, and derogation of that person’s rights.”

[55] Whatever meaning is attributed to “oppressive”, whether it be in terms of hardship to the accused resulting from changes in circumstances, unfairness or gross unfairness, it cannot be regarded as oppressive that he is now required to accept the consequences of his own actions. I concur with the District Court Judge that in all the circumstances of this case the plaintiff has failed to discharge the burden of proof on the balance of probabilities that it would be unjust or oppressive to surrender him in accordance with the warrant issued.

Standard of Proof

[56] The plaintiff submitted that the standard of proof applicable in this case is on the balance of probabilities and that the Judge misdirected himself by distinguishing between “conviction” and “accusation” cases which led him to approach consideration of the matter with a view that a “heavy burden” rested on the plaintiff.

[57] The Judge stated in his conclusions at paragraph 30 -

“. . . it follows that the role of the Courts in ‘conviction’ cases such as the one before this Court is therefore likely to be even more limited because of that and the burden upon the respondent to satisfy the Court that discretion against surrender ought to be exercised would correspondingly, while always heavy, be even heavier.”

[58] Paragraph 15(a) of the statement of claim details extracts from the District Court judgment including the above, which it is contended demonstrate that the Judge proceeded to wrongly fetter his discretion.

[59] On the question of burden of proof His Honour referred to the judgment of Fisher J in Police v Thomas where he summarised from the authorities relevant principles in relation to the exercise of the discretion under s.19 Fugitive Offenders Act.

[60] Fisher J stated at page 458 -

“(a) The general assumption is that established legal processes for returning prisoners under the Act should take their course. The fact that proceedings have been commenced in another Commonwealth country is not in itself a reason for impeding those legal processes. It is necessary to preserve the comity and mutual respect for law amongst commonwealth countries.”

(b) For those reasons it will only be in exceptional cases that the Court should exercise its discretion to discharge a prisoner under s.19. The reluctance to intervene may be illustrated by the cases of quite serious hardship (e.g. Gorman [1962] NZLR 17) and of extraordinary delays (e.g. Bieleski (unreported, High Court Auckland, 28.11.86, Henry J - 20 years) in which prisoners have nevertheless been returned to commonwealth countries to face trial.”

[61] The District Court Judge also referred to an observation by Gault J in Loh & Ke v The Commissioner of Police for Victoria, Melbourne, Australia (unreported, High Court Auckland, 11 October 1989) -

“Whilst Fisher J expressed the view that on the authorities it is established that it will only be in exceptional cases that the Court should exercise a discretion to discharge a prisoner, I reserve my view as to whether it is appropriate to construe s.19 (Fugitive Offenders Act 1981) as having quite such a limiting effect. Each case will turn on the circumstances disclosed and clearly a prisoner must show good grounds for the exercise of the discretion in terms of the section. It will not be common for applications to succeed. To that extent discharges may be exceptional but I am not sure that if otherwise the matters required by the section are shown, there is any need to superimpose a requirement of exceptional case.”

[62] The Judge then observed at paragraph 21 -

“What is common in respect of the two points of view is that discharges would be rare and the burden upon a prisoner to show the Court that the circumstances are such that a discharge should follow, is high. In the more recent case of Johnstone (Johnstone v Commonwealth of Australia (unreported, High Court Christchurch, A.266/98) Chisholm J applied the exceptional circumstances standard.”

[63] In paragraph 22 he rejected a submission from counsel for the Federal Republic of Germany that the respondent must be prevented from claiming advantage due to the extended passage of time because that advantage arises from him being an escaper and assuming a false identity. He considered that view too narrow because there might be special and exceptional considerations notwithstanding that the original actions of the person were indefensible. Neither, however, did he adopt the proposition of Mr Boyack for Mr Wolf that those actions are irrelevant. He reminded himself that the wording of s.8 specifically directs that the discretion is to be exercised “having regard to all the circumstances of the case”. He stated that the actions of the person concerned would in most cases, as was observed in Re Gorman from which he had previously quoted, be a relevant circumstance of any case.

[64] I consider there is considerable merit in the approach of Gault J. I doubt the usefulness or the justification for creating subdivisions of the relevant standard of proof which is on the balance of probabilities. However, it seems to me that the references in the various authorities, to e.g. “exceptional cases”, “heavy onus on the prisoner”, “discharges may be exceptional” all reflect the circumstances considered by the Courts in those cases, particularly those often referred to as “conviction” cases, where extradition is sought so that the established legal processes that follow conviction of the prisoner may take their course, as distinct from “accusation” cases where extradition is sought so that charges may be brought in respect of offences allegedly previously committed by the prisoner. In “accusation” cases a whole range of different considerations may arise impacting on whether the accused can receive a fair trial if extradited. Those were considerations relevant for example, in Kakis. In “conviction” cases such considerations are not relevant, for the conviction has been entered. Therefore in considering all the circumstances of the case the Court’s discretion is necessarily by comparison with “accusation” cases, directed to a narrower range of circumstances.

[65] Thus, I do not have difficulty in reconciling passages quoted and relied upon by counsel for Mr Wolf from the House of Lords case in R v Governor of Pentonville Prison Ex Parte Narang [1978] AC 247, for example that-

“. . . the Court has no right to demand a special standard of proof, such as very strong evidence or to decline to act except in an extreme case or on comparatively rare occasions either because the surrender is demanded by a Commonwealth government or by a friendly power

. . .

. . . there is . . . no room whatever for the view that any special standard of proof is to be required of an application under it (referring to s.8(3) of the Extradition Act 1967).”

[66] The standard of proof is on the balance of probabilities. The Court must consider all the circumstances of the case. But it is inevitable in “conviction” cases, (and this is such a case), that the circumstances to which the Court may properly have regard, will almost invariably be more limited than those applicable in “accusation” cases. Therefore, meeting the burden of proof will indeed place a heavy onus on the prisoner and it will indeed be rare that the onus is satisfactorily discharged.

[67] I do not consider that the District Court Judge misdirected himself as to the standard of proof. He was aware of the two streams of approach in the authorities. He considered the relevant circumstances, including the actions of the prisoner.

[68] Nor do I accept that insufficient consideration was given to the applicant’s age, the passage of time and other relevant considerations. When personal factors of the person are excluded from consideration by the Court in the exercise of its discretion under s.8, as I have determined they must be, then the focus of the Court’s discretion is inevitably and undeniably narrowed. Given the general assumption that the established legal processes for returning prisoners under the Act should take their course, intervention by the Court in exercise of its s.8 discretion will in fact, be exceptional or rare.

Failure to proceed by way of appeal

[69] Given my findings against the plaintiff it is unnecessary for me to consider submissions for the defendant that the Court should decline to grant the discretionary relief sought because the plaintiff failed to exercise his right of appeal under s.68 of the Act. However, I can indicate that I would have been disinclined to take a technical approach to this matter given the fundamental rights at stake and the absence of prejudice to the defendant.

Result

[70] The plaintiffs applications are dismissed. The decision of District Court Judge Thorburn therefore stands as does the warrant for detention issued by the Judge pursuant to s.26(1)(a) of the Act.