He did not know he was wanted by Western Australian police for the next seven years, even while living in Sydney between 2018 and 2020 and passing through Australian Immigration several times, including on a holiday trip to Vietnam.
An extradition request was not made by Australia until 2022 – a delay described as “inexcusable” by New Zealand courts.
By then, the man, whose name is suppressed, was back living in New Zealand.
The man did not even know he was a suspect for the 2014 assault until the extradition warrant was endorsed by a New Zealand court and he was arrested in October 2022.
Since then, he has fought the extradition bid right to the top of the court system – in the High Court, the Court of Appeal and finally, the Supreme Court.
The Supreme Court, in a majority decision issued today, has now found that, partly because of the “long and inexcusable delay”, forcing the man back to Australia to face charges would be “oppressive”.
It said he did not have to surrender himself for extradition.
Still processing the decision
The man has become a father while living under the shadow of the extradition threat – a factor that the Supreme Court took into its overall decision in his case.
His counsel, Tiana Epati KC, told NZME it was “probably an understatement” to say her client was very relieved.
“He’s very relieved. He didn’t say a lot when I spoke to him … He’s just processing it, but it’s been a long road to get to this point,” she said.
“So, yeah, [he is] very grateful and very relieved,” Epati said.
“As you can imagine, not knowing what is going to happen to you for years when you have a little child, is very difficult.”
Tiana Epati KC acted for the man in the Supreme Court. Photo / Supplied
Attack was unprovoked
The Supreme Court decision said the victim of the 2014 assault was sitting in the passenger side of a car with the window down.
The New Zealander, who is identified only as BW in court documents, ran up to him and, unprovoked, allegedly kicked him in the head through the open window.
When the victim got out of the car, BW allegedly punched him in the head and he fell to the ground unconscious.
BW then allegedly kicked him in the head and shoulder.
The victim required surgery after suffering a broken shoulder blade and collar bone, and scalp and hand injuries.
The man, who now lives in the Gisborne area, said he had some recollection of an incident that happened when he was living in Perth.
But he said that, given the passage of time, he could remember only “bits and pieces” of it.
The man told the court that at no stage during his travels was he informed there was a warrant for his arrest.
“Mr BW can only recall being stopped once at the border in Australia and being questioned about something to do with fines,” the Supreme Court decision said.
Since returning to New Zealand in 2020, the man said he has given up alcohol, worked across a number of industries, been involved with volunteer work, and has become a father.
Courts take differing positions
The New Zealand courts became involved in the case years after the assault, when the Australian extradition request was received in 2022.
District Court Judge Warren Cathcart issued the man a surrender order under the Extradition Act the following year.
He said that although the delay by the Australian authorities was “inexcusable”, this did not mean that his extradition would be unjust nor oppressive.
The man appealed to the High Court where Justice Rebecca Ellis said the District Court judge had erred. She quashed the surrender order.
A Court of Appeal judgement issued last year said Justice Ellis did not give sufficient consideration to comity – the principle of co-operation between nations in proceedings – and the seriousness of the alleged offending.
The Court of Appeal said it would be neither unfair or oppressive for the man to be extradited.
He then appealed to the Supreme Court, which in a majority decision has now come down against extradition.
In doing so, it noted that the man had lived a pro-social life since moving back to New Zealand and had become an “asset to his people”.
Changes in life ‘transformative’
“Delay in seeking his extradition will make mounting a defence more difficult, but more importantly, he has, in the intervening years, found a partner, had a family and built a new life with his whānau, hapū and iwi,” the Supreme Court decision said.
“These changes in his circumstances have been transformative for him and for those around him.
“It is clearly not in the best interests of Mr BW’s very young son that he be deprived of his father for a long period.
“We accept Mr BW’s submission that the younger the child, the greater the effects of separation,” the decision said.
“Unlike the Court of Appeal, and in agreement with the High Court, we do not consider this to be a marginal case.
“Taking into account all of the circumstances … we consider that, because of the long and inexcusable delay, to extradite Mr BW would be oppressive.”
Epati said today’s judgment marked a “quite significant development” about what could be considered unjust and oppressive in such cases.
In a dissenting opinion, Justice Forrest Miller said he would have upheld the Court of Appeal decision and referred the man’s case to the Minister of Justice for the final decision on extradition to be made.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of frontline experience as a probation officer.