case_text: The general purpose of genealogies as evidence in native title determination applications is to establish a link between the current claimants and previous inhabitants of the claim area. In an ideal world, genealogies would allow claimants to establish links with the inhabitants of the claim area at the time of sovereignty. However, due to a number of reasons including population decline, the oral nature of Aboriginal tradition, and the frailty of human memory, this is not always possible. In Neowarra v State of Western Australia [2003] FCA 1402 at [48] , Sundberg J held that '[I]nsofar as ancestors of the claimants cannot be traced back to sovereignty (1829), it is reasonable to infer that there have been no intervening events between 1829 and the time of the birth of the known ancestors of the applicants that stand in the way of a conclusion that the claimants of today are the descendants of the Aboriginal people present on the claim area [at sovereignty]'. See also Mason v Tritton (1994) 34 NSWLR 572 at 588-589 and Alyawarr at [110]. 497 Both Dr Walsh and Mr Graham gave evidence in relation to genealogies. Dr Walsh prepared the principal report and genealogies, which were checked and updated under the supervision of Mr Graham. 498 Dr Walsh's curriculum vitae, detailing his qualifications and experience, was tendered as an exhibit. He has a PhD in Linguistics and is a Senior Lecturer in Linguistics at the University of Sydney. He has experience with this native title claim group spanning three decades, having been one of the co-authors of the Kenbi Claim Book. I am satisfied that he is qualified to give the expert evidence he has provided to the Court. 536 The first applicants responded that it was essentially of little weight whether the use of kinship terms and the language of such terms, was consistent or otherwise. This was because, it was submitted, the general purpose behind the kinship system was fulfilled regardless of any inconsistency. The Court's attention was drawn to Neowarra v State of Western Australia [2003] FCA 1402 , where Sundberg J at [100] quoted an expert anthropologist as saying that purpose of kinship was to make 'biological links meaningful, culturally'. The first applicants submitted that the Larrakia people's use of kinship terminology fulfilled this purpose, because what is consistent is the presence of 'classificatory nomenclature which uses terms that primarily refer to lineal relatives to refer also to collateral relatives.' The use of the kinship terminology, to quote the submission, fulfilled its purpose by 'includ[ing] in a close network, people who would otherwise be only distantly related, if at all.' 537 Some Larrakia people now practice and recognise requirements and prohibitions concerning relationships. Primary evidence was led in relation to an avoidance requirement for relationships between brothers and sisters, as well as avoidance rules for mothers-in-law and sons-in-law. For example, Lorraine Williams and Anne Risk gave evidence about the brother-sister rule, whilst Maureen Ogden gave evidence in relation to the mother-in-law-son-in-law rule. The Territory noted in its submissions that the only witnesses to give evidence about the latter rule were members of the Williams family. 538 The Territory also points to an inconsistency of application of avoidance rules. There were anomalies in the evidence as to whether, for example saying the name of a brother/sister was prohibited, or whether speaking directly to that person was prohibited. There was evidence that some witnesses had only been informed of the avoidance rule in the last few years. The rule is neither universally nor consistently practised. Certain witnesses gave evidence that they were prohibited from saying the name of their sibling, because of the avoidance rule, only to use that same name in the context of other evidence. 810 The first applicants contrast those circumstances, involving interruption in the use or enjoyment of native title rights and interests which may not disqualify the current generation from having those laws and practices regarded as 'traditional', from those where there has been an interruption in the acknowledgment and observance of laws and customs. In the latter context, it is contended the laws and customs which are now acknowledged and observed will not have continued substantially uninterrupted since sovereignty: see Yorta Yorta at [87]. Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 described the contrast in the following way at [163]: 'When dealing with the "washed away" submission it is important to bear in mind that if what is asserted is a change or adaptation of traditional law or custom, the question is whether that change is of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws and customs of the Aboriginal people at sovereignty. If what is asserted is that there has been an interruption in the acknowledgment and observance of the law or custom, the question is whether that interruption is "substantial" or whether the acknowledgment and observance has continued "substantially uninterrupted": Yorta Yorta at [87] and [89].' 885 Section 47A must use the word the 'area' consistently. The area required to be occupied must therefore be the area held expressly for the benefit of the particular Aboriginal group under the relevant grant. It was referred to in submissions as the 'particular land administration area'. The common position on that issue, at least in respect of s 47A, follows the observations of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 at [686] . 886 The identification of the 'area' for the purposes of s 47B is more elusive than under s 47A, simply because it is described in an exclusory rather than an inclusory way. In Neowarra [2003] FCA 1402 Sundberg J at [721] said that 'in such a case as the present it means the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished'. I respectfully agree. 887 It is the nature of the extinguishing act or acts which informs the identification of the area or areas within the claim area upon which s 47B (if otherwise applicable) may operate. It is not the claim area itself, although in certain circumstances the claim area and the 'area' to which s 47B refers may entirely overlap. The finding about whether that 'area' was occupied at the time of the relevant application then becomes a matter of fact to be determined upon the whole of the evidence. 888 The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view. 899 That is the view taken at first instance by several judges of the Court. Nicholson J in Daniel at [930] and [958], and Sundberg J in Neowarra [2003] FCA 1402 at [697] and [720], applied s 47A and s 47B in circumstances where the application preceded the enactment of those sections. I did the same in Alyawarr at [314]. In none of those cases did the issue of intervening grants apparently arise.


case_outcome: considered

case_text: It was accepted by the Territory that certain witnesses gave evidence that their current hunting and fishing practices are motivated not only by a 'desire for sustenance' but also by a desire to maintain a connection with the land and their ancestors: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [157] . Patrick Briston, Bill Risk, Keith Risk, Eric Fejo, Morris Fejo and Lorna Talbot (in the Kenbi Claim) all gave evidence to this effect. Roque Lee explained that he goes hunting and fishing in the Darwin area 'for personal satisfaction, because I enjoy that sort of thing, but it's also looking after Larrakia country, it's keeping in touch with all the places that I used to go to, that I know of, and basically looking after country, as in checking on it and just going to the places.' 576 The Territory submitted that a system of hunting, fishing and foraging activities, as a way of 'looking after country' has arisen to fill the absence of a system based on spiritual connection to country. It was submitted that this system is so different to the pre-sovereignty system that it 'cannot be considered to be part of a system of "traditional laws and customs" which connect Larrakia people to the claim area'. 577 The DCC also highlighted the evidence of other witnesses, who said that they participated in hunting, foraging and fishing activities for sustenance and enjoyment, so supporting the notion that the desire to maintain a connection to country was a recent phenomenon. The first applicants rejected this position, stating that 'to be motivated to use one's country by the need for sustenance clearly involves "connection" under the system of law and custom that entitles you to regard country as your own.' 888 The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.


case_outcome: referred to

case_text: The first applicants in their submission accepted that s 223(1)(a) of the NT Act requires that the laws and customs of the present society should have been passed from generation to generation of the society from sovereignty, and that they exist under a normative system that has had a continuous existence and vitality since sovereignty. They point out that change in laws and customs does not necessarily mean that they are no longer 'traditional'. They may be modified and adapted in response to changing environmental, economic or other circumstances, but nevertheless preserve the link which gives them their 'traditional' character. There may be circumstances in which their exercise in a particular geographical area may be interrupted, but not in a way which destroys their character as 'traditional': see e.g. De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290.


case_outcome: cited

case_text: Hence, subject to s 47A and s 47B of the NT Act, any extinguishment of native title rights and interests at common law before that date continues to be effective. Acts and matters outside the definitions of 'previous exclusive possession act' and 'previous non-exclusive possession act' and which occurred before 31 October 1975 will retain their force despite the existence of native title and at common law will have effectively extinguished native title: Ward at [5], [114]. That date is the date of commencement of the Racial Discrimination Act 1975 (Cth) (the RD Act). Even if the RD Act applies, extinguishing acts after that date may still maintain their effectiveness where there is provided an entitlement to compensation in the native title holders: see Ward at [108]; Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 98. Sections 47A and 47B provide for certain circumstances in which the effect of certain extinguishing acts is to be disregarded. They are further referred to later in these reasons. 860 Extinguishing acts may fall into three categories: legislative or executive acts which simply extinguish native title rights and interest; laws or acts which create rights in third parties which are inconsistent with the continued right to enjoy native title (either wholly or partly); and laws or acts by which the Crown requires full beneficial ownership of land previously subject to native title. Acts in the first category are assessed objectively as to whether they have the purpose of extinguishing native title. The second category requires an assessment of the respective rights and interests under native title and of the third parties under the relevant instruments. Except on matters of general principle, I do not consider it possible to embark upon any detailed consideration of that category as it involves an assumption of the existence of certain native title rights and interests contrary to my earlier conclusion. The third category encompasses either an acquisition of land in which native title rights or interests existed and the assertion by the Crown of rights inconsistent with them, or an acquisition of such land for a purpose or purposes (and the use of the acquired land) inconsistent with the continued enjoyment of native title. The requirement for inconsistency means the third category also is one into which I consider it inappropriate to delve. 861 The respondents have approached extinguishment by first addressing those acts which, they claim, wholly extinguish native title over some or all of the claim area. They then address acts said to partially extinguish native title. The third step is to address acts which, it is argued, cannot be disregarded by s 47B of the NT Act. This final grouping includes public works which are said to extinguish native title.


case_outcome: followed

case_text: The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.


case_title: Passi on behalf of the Meriam People v Queensland [2001] FCA 697


case_text: The general rule, of course, is that an amendment to an enactment which may affect substantive rights or interests, unless the contrary intention clearly appears, should not be given retrospective effect so as to alter substantive rights and interests already determined under the law: see Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ; Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1 at 22 per Gibbs J.


case_title: Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1


case_title: State of Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33

case_text: The requirement for authorisation acknowledges 'the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications': Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, approved by the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 52 and cited in Daniel v WA at [12]. 901 In my view, there is no clear indication that s 47A and s 47B were intended to have a retrospective effect. The introduction of legislation intended to have that effect is likely to have been specifically remarked upon in the transitional provisions. That is more clearly so when the amending Act introduced extensive other amendments which included the regime under Div 2B of Pt 2 of the NT Act, and the transitional provisions dealing with them. I do not consider that the decision of the Full Court in State of Western Australia v Strickland [2000] FCA 652 directs a different result. It concerned the Native Title Registrar's obligations under s 190C of the NT Act in respect of the registration of a second claim over the same area. The context and purpose of the provision is quite different. The decision did not involve the potential alteration of established rights and interests retrospectively.


case_text: In my view, a 'prior interest' must be one created before the making of the application. That is the meaning to be derived from the context. Both s 47A(1) and s 47B(1) dictate their application by reference to circumstances at the date when the relevant application was made. It would follow that their effect, if they apply, is to operate at the same point in time. Both s 47A(2) and s 47B(2), have as their introductory words '[f]or all purposes under this Act in relation to the application ...'. Those words further point to the extinguishing effect of those sections applying to interests which arose before the date of the application. In addition, as s 47(2)(b) refers to 'any other' prior interest, the interest referred to in s 47(2)(a) may also inform the meaning of 'prior'; it does so by identifying an interest which must have existed before the application was made. I do not see anything in the decision in Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] FCAFC 227 ; (2003) 134 FCR 155 ( Erubam Le ) to the contrary. 906 I do not consider that s 47B(3) leads to any different conclusion. It preserves the validity of the creation of any prior interest, or the interest of the Crown in any public works. It does not thereby tend to support the view that s 47B generally applies to interests created after the application was made and before 30 September 1998. The contrary would appear to be the case by reason of the use of the term 'prior interest' which (as I have found above) refers to an interest created before the making of the relevant application. 907 The DCC was constituted as a body corporate under s 30 of the Local Government Ordinance 1954 (NT). The Municipality of Darwin was constituted and defined under s 8(1) of that Ordinance on 28 June 1957. The DCC is the municipal council for the Municipality of Darwin. 910 The DCC contended that s 47B does not apply within its municipal area. It also contended that, even if s 47B did apply, it does not cause the extinguishing effects of public works to be disregarded. It relied on Daniel [970] and Erubam Le respectively for those propositions. If s 47B does not so apply to its municipal area, or to those parts of its municipal area within the proclaimed Towns of Darwin, Sanderson and Nightcliff, any areas within those boundaries which have been subject to a previous exclusive possession act are, it contended, excluded from the application of s 47B so that it would not operate in those municipal areas to direct certain extinguishing acts to be disregarded. 911 Section 47B(1)(b)(ii) relevantly provides that the section applies only if, at the time of the application, the relevant area was not covered by 'a reservation, proclamation ... conferred by the Crown ... under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose'. 912 The proclamation of the Town of Darwin was made on 27 June 1927. The Town of Nightcliff was constituted and proclaimed on 10 March 1949 by proclamation under the Crown Lands Ordinance 1949 and also duly gazetted. The Town of Sanderson was constituted and proclaimed on 23 June 1972 by proclamation under that Ordinance and duly gazetted. Section 17 of the Acts Interpretation Act 1901 (Cth) would apply to remove any doubt that the three proclamations (and those extending the boundaries of the areas of those towns) are proclamations to which s 47B(1)(b)(ii) may apply.


case_text: I have no reason not to follow those decisions, and I do so. They were commented upon with apparent approval by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Waranungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ( Alyawarr FC ) at [193]-[195]. 890 Proof of occupation is a question of fact. So much is now clear: see Alyawarr FC at [196]. There may therefore be matters of degree to be assessed, more so in relation to s 47B. Evidence to prove occupation of the particular land administration area may not be confined to what happens or has happened on that area. The particular administration area may, in a practical sense, be part of a wider area which the claimant group (or some of them) utilise in a way which amounts to occupation of that total area including the particular land administration area. At the other end of the scale, occupation need not involve intensive use of all parts of the particular land administration area. Use of parts of it, whether by residence, visits, use of roads, activities, or in other ways, may reveal occupation of that area even though not every piece of that area has been the subject of such elements. Evidence going to proof of connection may therefore be relevant to proof of particular occupation, but a finding of connection will not necessarily lead to a finding of contemporary occupation at the time of the application. 891 I do not accept that occupation may be simply 'rights based'. In the case of s 47A, the existence of the relevant grant and its terms may be very significant evidence going to occupation. Very little more may be required to take the additional step of being satisfied about occupation. In the case of s 47B, there is unlikely to be such an instrument. Underlying s 47B is that, in particular circumstances where native title rights and interests existed or would exist but for extinguishment, extinguishment is to be disregarded. On its face, it does not equate the existence of those rights and interests with occupation. Section 47B(1)(c) is intended to add a further qualifying condition to its operation. Consequently, the fact of there being (if there were) native title rights and interests over a claim area including an area to which s 47B might apply would not, in my view, of itself establish occupation. Occupancy involves more than that. Of course, depending upon the relative sizes of the claim area and of the area to which s 47B might apply, the evidence going to establish native title rights and interests may also prove occupation in particular circumstances.


case_text: In view of that conclusion, the further submissions of the Territory focusing upon the definition of 'statutory authority', as being 'in relation to the Crown in right of the Commonwealth, a State or a Territory', do not need to be addressed. Those words have also led to certain decisions of the Court which have taken the view that certain municipal corporations are not 'statutory corporations' as defined: see Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 ; (2000) 109 FCR 178 at 191-192; Daniel [541]. 927 I note that the definition of 'public work' in s 253 of the NT Act extends to certain works carried out 'on behalf of the Crown, or a local government body or other statutory authority of the Crown'. The consequence of my conclusion on this issue does not therefore affect the significance of the public works carried out by the DCC. 928 I have indicated above why I have not fully addressed the arguments concerning extinguishment. There are many other matters of principle which have been the subject of submissions, and which have then flowed into the very thorough submissions applying the relevant provisions of the NT Act to the facts as they exist or are said to exist. Where the line was to be drawn between those issues of principlewhich could be addressed discretely from factual matters is obviously debatable. I have erred on the side of conservatism or caution.


case_text: AFANT, in addition to adopting the Territory's submission on extinguishment, made submissions about tidal waters in the claim area. It contends that the public right to fish and to navigate in tidal waters, discussed in Yarmirr at [60] and [94], meant that the first applicants could no longer properly maintain a right to exclude from the tidal waters all but those exercising those public rights. Whether such a claimed right may be available is a matter of doubt: see the High Court in Ward at [388]; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 ; Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457; Alyawarr FC . As I am not making a determination of native title rights and interests, I do not have to finally determine the issue.


case_title: Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457


case_text: has been well established that an applicant for leave to appeal has no election available to decide who shall hear the application, either a single judge or a Full Court. That is a matter for the judge before whom the motion comes for determination to decide. In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 the Full Court said at 554: "... it is open to the applicant to ask the Court or judge before whom the matter is listed to consider referring it to a Full Court or a single judge (as the case may be). It is then for the judge or the Full Court before whom the matter is listed to consider whether the matter is more appropriately dealt with in the manner suggested by the applicant. ..."


case_text: Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 Drummond J (with whom Cooper and Dowsett JJ agreed) quoted this passage and went on to say: " That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application." See also Minister for Immigration & Multicultural & Indigenous Affairs v WAKX [2005] FCA 227 at [25] - [33] .


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v WAKX [2005] FCA 227


case_text: am mindful of the observation of the majority of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 177 that: "... appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure." It is clear from the judgment of the High Court that in order for leave to appeal to be granted in respect of a matter of practice and procedure it must be established that not only is there an error of principle in the reasoning of the primary judge but also that the decision appealed from must work a substantial injustice to one of the parties if it is not reviewed. In the present case no error of principle is disclosed in the order made by the primary judge. Further, his decision does not work an injustice, whether substantial or otherwise, to the applicant. The primary judge has made no decision in relation to the disposition of the respondent's motion. The applicant will have every opportunity to respond to the matters raised by the respondent at the hearing of the motion. All that has happened is that preliminary steps have been taken by the primary judge to enable the parties to file and exchange contentions of fact and law which will facilitate the disposition of the hearing of the respondent's notice of motion. It was for these reasons that I dismissed the application for leave to appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 18 September 2009 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: S Bond Solicitor for the Respondent: Schetzer Brott & Appel Date of Hearing: 17 September 2009 Date of Judgment: 17 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1061.html


case_text: The Court's power to order security for costs is found in s 56 of the Federal Court of Australia Act 1976 (Cth). As Hely J said in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2] : 'It is clear from s 56 of the Federal Court of Australia Act 1976 (Cth)...and from Order 52 Rule 20 of the Federal Court Rules , that a single judge of the Court has power to order the provision of security for the costs of an appeal, even though the appeal itself is to be heard before a Full Court.'


case_text: My only concern about the grant of an order for security for costs is that it may shut out an impecunious litigant from advancing a case; see Fletcher and Others v Commissioner of Taxation (1992) 37 FCR 288 (' Fletcher '). Although it must be borne in mind that on appeal that issue may be less significant given that the appellant has already had the benefit of a judgment of a court; see Fletcher at 290. 16 Mr Upton has not asserted that he is impecunious, but only that he is unable to provide security for "$25 000 or any like sum". In any event, my view that his appeal does not have a good chance of success outweighs the consideration that an order for security for costs may stifle the appeal. 17 I consider it is appropriate to order Mr Upton to provide security for Tasmanian Perpetual Trustees' costs of the appeal given the poor prospect of the appeal being successful.


case_text: Delay in applying for an order for security for costs can be a factor against the making of an order; see, for example, Sun World International Inc v Registrar, Plant Breeder's Rights (unreported, Marshall J, 8 December 1997). However, in the current matter, Tasmanian Perpetual Trustees applied to the Court promptly for security for costs, some three and a half weeks after the filing of the notice of appeal and before any further step had been taken in the proceeding or further costs incurred. This aspect of Mr Upton's resistance to an order for security for costs is unfounded. 11 A factor weighing against the making of an order for security for costs is that such an order would stifle the litigation. An allied factor is the circumstance that the impecuniosity of the person from whom security is sought has been caused by the conduct of the person seeking such security. Mr Upton relied on those factors in resisting an order for security for costs. 12 An order for security for costs in the sum of $25 000 would stifle the litigation as Mr Upton is unable to satisfy an award in that amount or any "like amount". That is a factor to be weighed in his favour in considering the application.


case_outcome: applied

case_text: The discretion to award security for costs is wide but must be exercised judicially; see Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 1231 at [14] . 8 Mr Upton contended that security for costs should not be ordered in his appeal because: • he is unable to provide security for $25 000 or any like sum because of the conduct of Tasmanian Perpetual Trustees; • an order for security for costs and staying the appeal would stifle his appeal and lead to a sequestration order being made against him and to his other creditors being disadvantaged; and • Tasmanian Perpetual Trustees did not request him to provide security for costs before applying to the Court. Further, Tasmanian Perpetual Trustees did not apply to the Court for more than 21 days after the appeal was filed and applied prior to a notice of appearance in the appeal being filed. 9 Mr Upton also took issue with the estimate of Tasmanian Perpetual Trustees that the appeal would consume three days' hearing time.


case_title: Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1088


case_title: Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 , 90 ALD 632

case_text: Tribunal is not required to provide the Appellants with an indication of its tentative or provisional views based upon the material before it ( F Hoffman-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock; Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641) and thereby afford a party a further opportunity to supplement the evidence previously relied upon. Neither is it required to itself request " more information " to supplement a deficiency in the factual merits of the Appellants' case. Nor is it required to request " more information " in respect to claims rejected by reason of other facts.


case_text: some faulty or irrational finding of fact does not establish an error of law, let alone jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed) there observed at 356 (emphasis in original): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. Findings which are apparently inconsistent may, however, serve to sound a " warning note " such that a decision may be more carefully scrutinised: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411. Black CJ, von Doussa and Carr JJ there observed: [25] ... although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn. Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker. But where different conclusions are reasonably open on the facts, it is the Tribunal that is entrusted with the task of making those findings of fact which it considers appropriate: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 , 197 CLR 611. Gummow J there observed: [137] ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. See also Gleeson CJ and Toohey J at [39] to [46], 197 CLR at 626 to 628. A finding that is a crucial step in the ultimate conclusion reached by a Tribunal for which there is no evidence may, however, constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] , [2003] FCAFC 231 ; 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ, citing Australian Broadcasting Tribunal v Bond , supra . " [O]ne illogical aspect of fact finding in a wider scheme of factual analysis " may not expose jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 at [11] , [2006] FCA 265 ; 90 ALD 614 at 618 per Allsop J.


case_text: in the absence of an order pursuant to O 43, however, it should be noted that s 43 of the Federal Court of Australia Act 1976 (Cth) confers adequate power to make an order against the father. In Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 at 192 to 193 Mason CJ and Deane J observed: For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made. See also: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76 at [10] per Tamberlin, Weinberg and Allsop JJ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 at [20] to [21] per Collier J. Even had an order not been made pursuant to O 43, an order would nevertheless have been made that the father pay the costs of the appeal . The father had filed the Notice of Appeal ostensibly as " guardian " and sought to advance a case which, if successful, would have been of benefit to his children and perhaps himself.


case_title: Ex parte Davis (1901) 1 SR (NSW) 187

case_text: the event that the Appeal was to be dismissed, the Respondent Minister sought an order that the father pay the costs of the Appeal . The appointment of the father as a tutor avoids any difficulties that may otherwise have arisen in making such an order. Indeed, it has been said that " [t]he object of appointing a next friend is really to secure the defendant in respect of his costs if he should succeed ...": Ex parte Davis (1901) 1 SR (NSW) 187 at 189 per Darley CJ.


case_title: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362

case_text: some circumstances, a requirement may be imposed upon an administrative decision-maker to make further inquiries or to secure " more information ". One of the first judges of this Court to recognise that such circumstances may arise was Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 to 170. See also Luu v Renevier (1989) 91 ALR 39. But in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 at [214] , [2000] FCA 589 ; 173 ALR 362 at 417, Wilcox J also recognised that: It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.


case_title: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480, 190 ALR 543

case_text: The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] .


case_title: F Hoffman-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295


case_title: Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178


case_title: Luu v Renevier (1989) 91 ALR 39


case_title: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76


case_title: Minister for Immigration and Citizenship v Le [2007] FCA 1318 , 161 FCR 151

case_text: when entertaining an appeal from the Migration Review Tribunal, in Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 Moore, North and Emmett JJ concluded at [24] that "... the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ... ". It has, however, further been recognised that a failure on the part of the Tribunal to make inquiries may constitute jurisdictional error: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] to [63], 161 FCR 151 at 172 to 174 per Kenny J. Applied: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [19] , [2008] FCA 1372 ; 104 ALD 22 at 25 to 26.


case_text: prior applications as made by both the mother and subsequently the father, and the statements made in support of those applications, were matters which the Tribunal could properly take into account when resolving the most recent applications as made by the present Appellants. But the weight to be given to the differing statements being made, and the explanations provided for giving those statements, was a matter entrusted to the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J. Notwithstanding what the Appellants seek to characterise as their mother's " honest explanation " of the claims previously advanced, the Tribunal was not obliged to accept that explanation. The second Ground of Appeal asserts that the Tribunal acted in a " manifestly unreasonable " manner.


case_title: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 , 106 FCR 426


case_title: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 , 175 ALR 209


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21 , 197 CLR 611


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 , 90 ALD 614


case_title: Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1

case_text: The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] . In limited circumstances a Tribunal, in the discharge of its " inquisitorial " functions, may be required to consider a claim not articulated by a claimant: e.g. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2), supra , at [58] to [61], 144 FCR at 18 to 19 per Black CJ, French and Selway JJ. But such is not the present case. The alternative manner in which the Appellants seek to advance their first Ground of Appeal is to allege a denial of " procedural fairness " on the part of the Tribunal by reference to the " weight " given by the Tribunal to the claims previously advanced by the mother. The Tribunal considered the claims made by the Applicants' mother in her earlier unsuccessful application for a protection visa and relevantly concluded as follows: [97] The Tribunal is satisfied that the Applicants' father is competent to speak on behalf of the Applicants. The Tribunal accepts that the Applicants' mother was happy to leave this role to her husband and that she did not wish to speak on behalf of her children. The Tribunal draws no negative inferences from her stated unwillingness to speak at the RRT hearing. [98] The Tribunal does, however, have regard to the comments she gave in response to its concerns about the difference between the claims she raised on behalf of the Applicants' family in 2005 and the claims now being raised by her husband on behalf of the present Applicants. It is fair to observe that the 2006 coup had not occurred at that stage, so that is one factual element that the Applicants' mother could not logically have been in a position to discuss or even reasonably predict, but that does not satisfactorily explain why the Applicants' mother claimed that her family was being harassed by Speight supporters over all those years, whereas her husband later claimed that they were being harassed by the forces that were actually trying to break up the Speight putsch . [99] The Tribunal gives weight to the fact that the claims lodged by the Applicants' mother, and also evidently subscribed to at the time by the Applicants' father (according to what he said to the presently-constituted Tribunal in oral evidence and in writing), were denounced by both of the Applicants' parents, at the RRT hearing, and by the Applicants' father in writing later on, as false claims .


case_title: Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 , 122 FCR 29

case_text: written submission was advanced on behalf of the Minister as to whether or not a proceeding such as the present could be brought by the Appellants without the appointment of a guardian or tutor: see X v Minister for Immigration and Multicultural Affairs [1999] FCA 995 , 92 FCR 524 ; Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 at [106] , [2002] FCAFC 194 ; 122 FCR 29 at 50. The concern of the Respondent Minister may nevertheless be accepted. In the absence of an order being made under O 43 of the Federal Court Rules appointing a " tutor ", it has been said that the resolution of an appeal may not bind the Appellants: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 , 126 FCR 552.


case_title: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155


case_title: S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246


case_title: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 , 126 FCR 552


case_text: is made in O 43 of this Court's Rules for the appointment of " a tutor for a person under disability " for the purposes of conducting a proceeding in this Court. A " tutor " is defined as meaning " a next friend, guardian ad litem or committee of the person ... under disability ". If a " tutor " is to be appointed, it is obviously inappropriate to appoint the Minister as he is a Respondent to the proceeding and a person having an " interest adverse to the interest of the person under disability " within the meaning of O 43 r 4(3): SCAW v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 810 at [2] . The Appellants are infants and, accordingly, persons " under disability " within the meaning of O 43. Order 43 not only confers the power to appoint the Appellants' father as their tutor. That Order, not surprisingly, also provides for a number of procedural requirements to be satisfied prior to such an order being made. Those requirements include the filing and service of a notice of motion (O 43 r 2(2)), the need for a tutor to act by a solicitor (O 43 r 5(2)), and the filing of a certificate by the solicitor stating that " the tutor has no interest in the proceeding adverse to that of the person under disability " (O 43 r 4(6)(b)).


case_title: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 [2003] FCAFC 231 ; , 77 ALD 402


case_title: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 , 104 ALD 22


case_text: other cases an order has been made appointing one or other of the parents of an infant as a next friend and further orders made dispensing with compliance with the " formal steps " otherwise prescribed by O 43: e.g. SZJXW v Minister for Immigration and Citizenship [2008] FCA 143. Notwithstanding the position the Respondent Minister ultimately adopted, namely that no order was sought, his concern as initially expressed should prevail. There should be no uncertainty that the resolution of the present Appeal binds the Appellants. Although an order should not necessarily be made simply " to avoid doubt ", there should be no uncertainty as to the conclusiveness of a decision of this Court. An order should thus be made appointing the father as the Appellants' tutor. Compliance with the procedural requirements imposed by O 43 before such an order may be made is dispensed with pursuant to O 1 r 8 of the Federal Court Rules . Insistence upon compliance with those " formal steps " in circumstances where there is no reason to question the competence of the father to protect the interests of his two sons and where the father is unrepresented would place an unnecessary obstacle in the path of the father advancing the case on behalf of his family. His participation in the Appeal has been taken as implicit consent to his appointment as the tutor for his sons. The first Ground of Appeal asserts a denial of " Procedural Fairness " initially by reference to a failure on the part of the Tribunal to carry out its functions in an " Inquisitorial Manner ". This failure is said to emerge from the statement of the Tribunal that it had " ' ... considered all of the evidence before it' whereas it made a contrary finding ".


case_outcome: affirmed

case_text: were thereafter filed with the Federal Magistrates Court seeking review of the Tribunal decision. That Court heard both applications together and dismissed both applications: SZNCT & SZNCU v Minister for Immigration and Citizenship [2009] FMCA 233. A Notice of Appeal was filed in this Court on 9 April 2009. The Grounds of Appeal there set out are as follows (without alteration): GROUNDS OF APPEAL 1. The Learned Federal Magistrate was in error in not determining that the Second Respondent had failed to accord "Procedural Fairness" to the Applicant because of: 1.1 its failure to carry out its role in an Inquisitorial Manner when it said "Having considered all of the evidence before it" whereas it made a contrary finding. 1.2 the weight it gave to the claims of the Applicant's mother in her application for a protection visa in 2005 notwithstanding an honest explanation of these claims by both of the Applicant's parents. 2. The Learned Federal Magistrate was in error in not determining that the Second Respondent acted in a "manifestly unreasonable" manner towards the Applicant when dealing with the Applicant's claims because of it's failure to consider the claims in accordance with the Criteria in Article 1(A)(2) of the 1951 UN Convention relating to Status of Refugee. 3. The Learned Federal Magistrate was in error in not determining that the Second Respondent fell into jurisdictional error in failing to request more information regarding the applicants' father's victimisation for his political affiliations and activities in the SDL letter from the SDL official itself. The Notice of Appeal was signed by the Appellants' father, purportedly as " guardian ". A statement of " Contentions of Fact & Law " was filed on 30 July 2009 and it, too, had been signed by the father. The Appellants' father appeared before this Court on 6 August 2009. The Appellants were otherwise unrepresented. There was no interpreter to assist the father but he nevertheless wished for the Appeal to proceed. A copy of a written Outline of Submissions filed on behalf of the Respondent Minister had apparently not been previously seen by the father and there was thus a short adjournment to allow the father the opportunity to read those submissions. The appeal then proceeded.


case_title: X v Minister for Immigration and Multicultural Affairs [1999] FCA 995 , 92 FCR 524


case_text: Thus a conclusion that it would be 'unjust' or 'oppressive' ought not lightly be reached. The entirety of the legislation and context suggests that such cases will be, to recall the language of the counterpart New Zealand legislation, compelling or extraordinary. (It is, in the context, and despite what are, to an extent, imponderables, an easier and more objective judgment to say whether it would be 'too severe a punishment' to surrender a person.) The authorities referred to by Sackville J in Venkataya and subsequent authorities including Bannister v New Zealand [1999] FCA 362 ; (1999) 86 FCR 417 and Kenneally v New Zealand [1999] FCA 1320 ; (1999) 91 FCR 292 require and confirm that general approach. 110 The Longman requirement is, in my opinion, analogous to the rejection by the High Court of 'representative charges' in Australia, considered in this Court in Bannister . In that case, it appeared that, in sexual abuse cases in New Zealand (as explained in R v Accused [1993] 1 NZLR 385 at 389) where the prosecution evidence: '... does not enable more particularity than that the conduct alleged occurred a number of times over quite a long period, such as a year or more ... the practice is to specify in [a] count [that] period ... and to allege a crime (eg rape or indecent assault) during that period ... To obtain a conviction the prosecution must then satisfy the jury beyond reasonable doubt that at least one criminal act of the description alleged was committed by the accused during that period ...' 112 In Bannister the Full Court of this Court said (at [26]): 'We conclude that it is appropriate, in considering whether, "for any other reason" it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive. Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar. This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels. We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point, the two systems have diverged. In considering the present application, we can only apply the decision of our own ultimate appellate court. We do not consider that every minor difference in procedure would justify our declining extradition. Such a step will only be justified if the procedure likely to be followed in the country to which extradition is sought will render it unjust or oppressive to surrender the alleged offender. In the present case, injustice or oppression must be measured by considering the High Court's view concerning the practice which will be followed in New Zealand, which view is that it is most unlikely to result in a fair trial. The High Court has recognized that some aspects of the potential unfairness may be avoided by appropriate directions to the jury but clearly, not all of the problems can be met in this way. For example, there is nothing in R v Accused suggesting how a New Zealand court will ensure that all members of the jury base conviction on any count upon substantially the same alleged conduct. This is not merely a theoretical problem, but a real danger in the view of the High Court. In R v Accused, the New Zealand Court expressly approved the direction given by the Trial Judge in S . The High Court clearly considered it to be inadequate. Thus we conclude that proceedings in New Zealand would probably take the form expressly disapproved in S .' 113 With unfeigned respect for those who decided Bannister , it concerned me at first that that case might need reconsideration and that I should perhaps refer this matter to a Full Court. However, on reflection it seems to me that, in the light of authority as to s 34(2) and the similar provisions as to interstate extradition formerly contained in the Service and Execution of Process Act 1992 (Cth) , the approach adopted in Bannister of giving effect to strong and clear High Court authority as the measure of 'injustice' was correct, indeed inevitable. Further, the case is explicable as an instance of 'injustice' constituted not by some mere evidentiary or relatively important procedural divergence between New Zealand and Australian law, but as one of a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised, as indicated above, as a basic human right. 114 There is no suggestion that, since the alleged commission of the offences complained of, either applicant has done anything further to bring about or contribute to the delays in the complainants bringing forward their allegations. They are not in the category of persons who have fled to a foreign shore to escape justice. They have simply lived their lives and lived them lawfully. Their ordinary service in the Order, operating as it does across Australasia, has brought them to this country. Nor have they contributed in any disentitling way to the delays since they were told of the allegations. 115 Under Australian criminal law and practice, it seems likely to me, on the scant material available, that there would be no joint trials in New Zealand as proposed by the prosecution. To begin with, there could be no joint trial unless the evidence from either of the complainants was admissible to prove the guilt of another. The most common way that such material is admitted is if the picture presented in relation to the two charges is so striking that it negatives the possibility of concoction by either complainant. It is not suggested that any of the acts said to have been committed by either applicant fall outside what are, regrettably, commonplace and unremarkable ways in which male children are sexually abused. Even if that hurdle be overcome, should the actual evidence exceed present expectations, the evidence would likely be rejected in Australia if there is a real prospect of concoction or of unconscious contamination. Given the circumstances in which the complainants have made their way to the police, it may be difficult to gainsay that prospect. 117 In New Zealand it appears that the test to be applied is whether the probative value of the evidence 'outweighs' any prejudicial effect: R v Holtz [2003] 1 NZLR 667 at 675 and that, in so determining, the courts consider whether there is a 'real chance' of concoction. I agree with counsel for New Zealand that such differences as may exist between Australian and New Zealand laws of evidence are not themselves such as to invoke the Bannister principle. 118 To the extent, as suggested by New Zealand, that the evidence may be cross-admissible to show 'context' ('to explain, for example, why no complaints were made', it was said) and that, for that reason, there is no requirement that the probative value of the evidence should outweigh its prejudicial effect, appears on the face of it far-fetched. I am unaware of any case where cross-admissibility of the evidence of different complainants has been judicially conceded for such a purpose, and it is not easy to see why such evidence would furnish any relevant context of that kind. In both New Zealand and Australia the long suspicion of the common law, for good reasons, of 'similar fact' evidence is likely to continue strongly to influence trial and appellate judges. 119 Finally, there would be a discretion in the trial judge to exclude the evidence if its unfair prejudicial quality might substantially outweigh its probative value: Evidence Act 1995 (Cth) s 101. The result of a proper exercise of that discretion would seem likely to dictate that the only charges against Moloney and McGrath that an Australian court would permit to be tried together would be those arising from the allegations of the one complainant who alleges that they were engaged in some kind of joint criminal enterprise against him. As indicated above, a high degree of prejudice would appear to arise from the joint trial of any charges involving separate complainants. As counsel for the applicant put it, there is a risk that a jury may reason along the lines: 'If only one of these people complaining had made the allegation we might well have a reasonable doubt about it, but as there are more than one making allegations, we feel comfortable about accepting all of them." Such would deny the necessity for separate considerations of an satisfaction beyond reasonable doubt, an admissible evidence, as to each individual allegation, and above all of the credibility of the individual complainant. In Australia, as a matter of practice, an extraordinarily high, actual probative value would probably be required of the evidence of the other complaints. As presently advised, this appears very unlikely. 123 On such a practically important matter, an Australian judge or magistrate must view any difference between practices in the two national jurisdictions as tending, in some degree, towards injustice, given the likely consequences, and notwithstanding that, in themselves, the differences in the laws of evidence between the two countries would not attract the Bannister principle discussed at [110]-[113] above. For present purposes it is enough to say that the apparent possibility that joint trials might occur in New Zealand is a circumstance exacerbating the disabilities inherent in the applicants having to defend themselves so long after the alleged events. 131 This second aspect has also occasioned my anxious concern. However, as indicated above, I am not only bound by the approach taken in Bannister , but on reflection consider that the Bannister conclusion is inescapable for an Australian court, where there is a divergence between New Zealand and Australian law, however contestable, in a matter sufficiently serious as to turn the issue on the question of injustice. The divergence in my view, as to the Longman direction, does have that quality in the present cases. I see no way around this in New Zealand's favour. 132 Let me make it clear: my preference would be that the legislation should make it plain that New Zealand courts should deal with these problems and, in cases of such serious allegations, Australia should accept any degree of injustice to Australian judicial eyes that is not shared by our genuinely respected New Zealand counterparts: Australians generally would wish for the same degree of respect for our criminal justice system from the New Zealand parliament. But that is not what our Extradition Act says. It specifically envisages that there might be 'injustice' a broad concept in extraditing a person to New Zealand. It seems to me that, applying the Act according to its terms, the applicants have made out their case against surrender. Sackville J indicated in Venkataya at [163] that, if the result in that case was unsatisfactory, legislative change might be the answer. I venture to suggest that the outcomes in Venkataya , Bannister and this case, although regarded as necessary by the persons who decided them, may from a public policy point of view be less than satisfactory.


case_text: The usual or 'presumptive' results of long delay are the possibility of honest unreliability on the part of the complainants, including possible unconscious substitution of an imagined reality for what actually occurred, the fading and loss of recollection of pertinent details by an innocent accused and the loss of legitimate opportunities to test the detail of allegations and marshal evidence pointing to innocence. McHugh J (in remarks later approved in Crampton v The Queen [2000] HCA 60 ; (2000) 206 CLR 161 by Gaudron, Gummow and Callinan JJ, said in Longman v R [1989] HCA 60 ; (1989) 168 CLR 79 at 107: 'The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: ... No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complainant and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. ... Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, "I don't hate him but I do hate what he's done and the problems it's caused in my life". H owever, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred. To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.' 104 I turn to what is, to my mind, upon reflection, an important matter. Under Australian law, there are quite specific safeguards required in trials of old allegations of the kind here in question. In such a case it is mandatory that the judge should give the jury a strong warning, not merely make comment, about an accused person's 'loss of those means of testing the complainant's allegations which would have been open to him had there been no delay ...'. The High Court so decided in Longman [1989] HCA 60 ; (1989) 168 CLR 79. Brennan, Dawson and Toohey JJ said (at 91): 'After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales..) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.' McHugh J would have required more (at 108-9): '... the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, ... that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. ...' His Honour's suggestions were, as earlier indicated, approved by a majority in Crampton. 105 In Crampton Gaudron, Gummow and Callinan JJ said (at [45]): 'The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. ... An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions . Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.' (emphasis added) 106 Kirby J gave a detailed explanation of the kinds of disadvantages to an accused person involved where there is long delay (at 209): 'The warning required by Longman ... must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after twenty years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, twenty years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant. Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as "I can't remember" or "it's too long ago" made it extremely difficult to test that evidence in an effective way. The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. http://www.lexisnexis.com/au/legal/frame.do?tokenKey=rsh-23.108386.53949933563&target=results_DocumentContent&parent=docview - 03-02526fn188#03-02526fn188 That idea is contrary to the repeated authority of this court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. http://www.lexisnexis.com/au/legal/frame.do?tokenKey=rsh-23.108386.53949933563&target=results_DocumentContent&parent=docview - 03-02526fn189#03-02526fn189 The passage of time -- especially great time -- may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms .' (emphasis supplied)


case_text: The usual or 'presumptive' results of long delay are the possibility of honest unreliability on the part of the complainants, including possible unconscious substitution of an imagined reality for what actually occurred, the fading and loss of recollection of pertinent details by an innocent accused and the loss of legitimate opportunities to test the detail of allegations and marshal evidence pointing to innocence. McHugh J (in remarks later approved in Crampton v The Queen [2000] HCA 60 ; (2000) 206 CLR 161 by Gaudron, Gummow and Callinan JJ, said in Longman v R [1989] HCA 60 ; (1989) 168 CLR 79 at 107: 'The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: ... No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complainant and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. ... Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, "I don't hate him but I do hate what he's done and the problems it's caused in my life". H owever, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred. To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.' 104 I turn to what is, to my mind, upon reflection, an important matter. Under Australian law, there are quite specific safeguards required in trials of old allegations of the kind here in question. In such a case it is mandatory that the judge should give the jury a strong warning, not merely make comment, about an accused person's 'loss of those means of testing the complainant's allegations which would have been open to him had there been no delay ...'. The High Court so decided in Longman [1989] HCA 60 ; (1989) 168 CLR 79. Brennan, Dawson and Toohey JJ said (at 91): 'After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales..) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.' McHugh J would have required more (at 108-9): '... the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, ... that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. ...' His Honour's suggestions were, as earlier indicated, approved by a majority in Crampton. 107 Thus in Australia there is a guarantee that, if a trial of old allegations of alleged childhood sexual assault is not stayed, the difficulties faced by an accused faced in meeting accusations of conduct long ago will be mitigated by a 'firm and unmistakeable' warning to the jury carrying the weight of the trial judge's authority. There is no such guarantee in New Zealand. It appears that the courts of that country have set their face against following Longman : R v M CA 187/95 13 November 1995 . 108 It is not, of course, every difference between New Zealand and Australian criminal law that will justify the courts of one of them in regarding the law of the other as unjust. Indeed the courts should be chary of doing that, as the authorities I elsewhere refer to indicate. In many instances, reasonable minds may and do differ on what constitute the incidents of a fair trial. However, the matter at issue concerns the mitigation of likely actual disability for an accused person arising from long delays. The Longman direction is viewed in Australia as necessary to ensure that the accused gets a fair hearing by the jury. The Australian view is that there is a non-negotiable need to warn the jury of something crucial that they are likely not sufficiently to appreciate or properly to consider without that warning. In Doggett v The Queen [2001] HCA 46 ; (2001) 208 CLR 343 the High Court held (by majority) that a Longman direction must be given even where a complainant's evidence was corroborated, the prosecution case was 'in many respects a strong one' (c.f. [55] per Gleeson CJ) and experienced counsel had made no request for it at trial. 109 It seems to me that the requirement for a Longman direction is not something that any Australian judge or magistrate is entitled to view as other than a vital requirement for a just trial in a case of long delay. Upon analysis, because it deals with a particular difficulty the accused would have in having the jury understand his story, the necessity for such a direction goes to the right to a fair hearing. Such is, of course, a fundamental right recognised by the Universal Declaration of Human Rights (adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948) ('UDHR') and the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)) ('ICCPR'), together often known as the International Bill of Rights. The UDHR provision (Art 10) provides: 'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.' So far as material Art 14(1) of ICCPR provides: 'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...' 110 The Longman requirement is, in my opinion, analogous to the rejection by the High Court of 'representative charges' in Australia, considered in this Court in Bannister . In that case, it appeared that, in sexual abuse cases in New Zealand (as explained in R v Accused [1993] 1 NZLR 385 at 389) where the prosecution evidence: '... does not enable more particularity than that the conduct alleged occurred a number of times over quite a long period, such as a year or more ... the practice is to specify in [a] count [that] period ... and to allege a crime (eg rape or indecent assault) during that period ... To obtain a conviction the prosecution must then satisfy the jury beyond reasonable doubt that at least one criminal act of the description alleged was committed by the accused during that period ...' 131 This second aspect has also occasioned my anxious concern. However, as indicated above, I am not only bound by the approach taken in Bannister , but on reflection consider that the Bannister conclusion is inescapable for an Australian court, where there is a divergence between New Zealand and Australian law, however contestable, in a matter sufficiently serious as to turn the issue on the question of injustice. The divergence in my view, as to the Longman direction, does have that quality in the present cases. I see no way around this in New Zealand's favour. 136 There is however one aspect of possible oppression which deserves further discussion. It was argued that, despite the lack in New Zealand of the specific and important common law protection available in Australia constituted by the necessity for the Longman direction, there is at least a good chance that the New Zealand courts would consider that the combination of the detriments to the defence case from the long delay and the possibilities of unreliable if honest evidence that appear to exist, would warrant the trials being stayed. It is said that it would be oppressive to surrender the applicants only to see them not tried. 137 There are two answers to this. Firstly, I cannot foretell with reasonable confidence how New Zealand courts might react to the entirety of the material, including the actual witnesses' statements, that would be before them on stay applications. Secondly, there must be many cases in which people are extradited to New Zealand where, for one reason or another, the trial does not proceed. If it is not oppressive to return someone with a strong prospect of being actually found not guilty, it is hardly oppressive to return him even if he has a strong prospect of the proceedings terminating, for what may be less meritorious reasons, in a way which favours him.


case_text: In New Zealand v Venkataya (1995) 57 FCR 151 at 162-3, Sackville J provided some further background to the terms of s 34(2): 'The language used in s.34(2) has its Australian antecedents in the provisions of the Service and Execution of Process Act 1901 ("the 1901 Act"). Section 18(6) of the 1901 Act governed the extradition of persons from one Australian State or Territory to another until the 1901 Act was repealed by the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 , s.3. ... The three grounds specified in s.18(6) existed in the 1901 Act in its original form: Binge v Bennett (1988) 13 NSWLR 578 (NSW CA), at 584, per Kirby P. Unlike s.34(2), s.18(6) of the 1901 Act did not refer specifically to the lapse of time since the alleged offence was committed. However, the court's powers under that sub-section arose if, "for any reason", it would be unjust or oppressive to return the person to another State or Territory. The immediate predecessor to s.34(2) of the Act was s.27 of the Extradition (Commonwealth Countries) Act 1966 ("the 1966 Act"), Part III of which dealt with extradition to and from New Zealand. The scheme of Part III of the 1966 Act was similar to that of Part III of the 1988 Act and was summarised by Wilcox and Jackson JJ. in Narain v Director of Public Prosecutions (1987) 15 FCR 411 (FCA/FC), at 417 ( Narain v Director of Public Prosecutions was the subject of High Court proceedings, but on other issues: see Narain v Director of Public Prosecutions (1987) 61 ALJR 317; 71 ALR 248). Section 27 of the 1966 Act read as follows: "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 [order the person released or make other orders the magistrate thinks just]." It will be seen that s.27(a)(iii) of the 1966 Act referred to "the passage of time" since the alleged offence, rather than the fact that "a lengthy period has elapsed" since the alleged offence, as does s.34(2) of the 1988 Act. However, I do not think that anything turns on this slight difference in language. The authorities construing s.27 of the 1966 Act, as well as those dealing with s.34(2) of the 1988 Act, must therefore be considered in construing the current legislation. The authorities construing s.18(6) of the 1901 Act are also helpful, despite the more significant differences in language. It should be noted that, since 10 April 1993, extradition within Australia is governed by the regime created by Part 5 of the Service and Execution of Process Act 1992 . Under this regime, although there is power to consider the validity of a warrant and to grant bail, the magistrate has no statutory discretion to refuse to return the person apprehended to the place where the warrant was issued: ss.83 - 86 . It is of course open to Parliament to introduce a similar regime for the extradition of accused persons from Australia to New Zealand, but that step has not been taken.' 71 Thus a conclusion that it would be 'unjust' or 'oppressive' ought not lightly be reached. The entirety of the legislation and context suggests that such cases will be, to recall the language of the counterpart New Zealand legislation, compelling or extraordinary. (It is, in the context, and despite what are, to an extent, imponderables, an easier and more objective judgment to say whether it would be 'too severe a punishment' to surrender a person.) The authorities referred to by Sackville J in Venkataya and subsequent authorities including Bannister v New Zealand [1999] FCA 362 ; (1999) 86 FCR 417 and Kenneally v New Zealand [1999] FCA 1320 ; (1999) 91 FCR 292 require and confirm that general approach. 132 Let me make it clear: my preference would be that the legislation should make it plain that New Zealand courts should deal with these problems and, in cases of such serious allegations, Australia should accept any degree of injustice to Australian judicial eyes that is not shared by our genuinely respected New Zealand counterparts: Australians generally would wish for the same degree of respect for our criminal justice system from the New Zealand parliament. But that is not what our Extradition Act says. It specifically envisages that there might be 'injustice' a broad concept in extraditing a person to New Zealand. It seems to me that, applying the Act according to its terms, the applicants have made out their case against surrender. Sackville J indicated in Venkataya at [163] that, if the result in that case was unsatisfactory, legislative change might be the answer. I venture to suggest that the outcomes in Venkataya , Bannister and this case, although regarded as necessary by the persons who decided them, may from a public policy point of view be less than satisfactory. 138 However, the factors discussed in relation to injustice are also relevant to the notion of 'oppression' and I think that, collectively, they would also make it oppressive to order the applicants' surrender to New Zealand. In any case, as Sackville J said in Venkataya at 171: '... as the authorities acknowledge, there is room for overlap between the concepts of injustice and oppression; and the question is ultimately whether the whole of the circumstances render it unjust or oppressive to surrender the first respondent to New Zealand. The difficulties facing the first respondent in preparing for trial should be considered, together with the other factors to which I have referred, in determining that question.' 139 No lack of belief by the New Zealand police officers concerned in the truth of the charges was alleged. Nor is there evidence sufficient to establish conscious falsehood on the part of any complainant. 140 Alleged departures by New Zealand police from desirable practice in interviewing Father Garchow in Australia produced nothing adverse to him or beyond what was common ground.


case_text: The Australian standard should, I think, be regarded as set by the Evidence Act 1995 (Cth) although Victoria and Queensland have each adopted their own and different approaches to the matter. Section 101 of that Act requires that 'tendency' or 'coincidence' evidence cannot be used against a criminal defendant 'unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant'. That is a less strict test for its admissibility than the Australian common law, which required that there be no rational explanation for the evidence except the guilt of the accused: R v Ellis [2003] NSWCCA 319 ; (2003) 58 NSWLR 700 at [95] . Now, a balancing exercise is required in each case: ibid . A serious possibility of concoction or unconscious contamination would still appear to be perfectly properly to be weighed in that balance. As McHugh J said in Pfennig v R [1995] HCA 7 ; (1995) 182 CLR 461 (at 529-530) (in dissent, but now, in my opinion, allowably as a useful guide see W v R [2001] FCA 1648 ; (2001) 115 FCR 41 at [102] ): 'Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. ... If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal propensity may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused's guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal propensity is exceptional. Further, as Lord Cross pointed out in Boardman , while there remains a general rule against the admission of other acts of misconduct, "the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence" . Thus, where the prosecution case depends entirely on propensity reasoning, the evidence will need to be very cogent to be admitted. When propensity reasoning is relied upon, the danger is high that the tribunal will convict simply because of the accused's propensity instead of using it as an evidentiary factor. Consequently, in such a case the evidence will need to be so cogent that, when related to the other evidence, there is no rational explanation of the prosecution case that is consistent with the innocence of the accused. However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable propensity of the accused, must always meet this high standard.'


case_text: In any event, when one has regard to the terms of the observations made by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 especially at paras 15, 17 and 18 and to the exceptions for which s 424A(3) provides, it seems to me that the Tribunal was not under any obligation derived from s 424A , to invite the Appellants to comment upon information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. Rather, the letter is one which might fairly be categorised as an invitation given, pursuant to s 424(2) of the Migration Act , to give to the Tribunal additional information. 12 However one approaches the contention that the Tribunal has breached s 424A , it seems to me that it must fail. 13 This was not in terms, a ground pursued for the Federal Magistrate. Again, it was not the subject of any written submission on behalf of the Appellants. Further, when invited to expand in oral submissions upon the ground, the male appellant replied, "No". One way of dealing with this ground in those circumstances, would be to treat it as so devoid of particularity as not to amount to a meaningful ground of appeal. Once again, and with respect properly, the Minister sought instead to highlight the way in which the Tribunal had dealt with the question of whether satisfaction of the male Appellant's and hence the female Appellant's status as a refugee had been dealt with in the Tribunal. In effect, the Tribunal's reasons were subjected to a critical analysis in this regard. It appears that this course may also have been followed before the Federal Magistrates Court. 21 This finding was, in my opinion, one reasonably open to the Tribunal. In light of that finding a very real question, indeed, would be raised were there otherwise to be any merit in the grounds appeal, as to whether relief ought to be denied as a matter of discretion, on the basis of futility. See SZBYR at 1197 1198, paras 27 - 29. 22 For these reasons then, the appeal is dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 13 November 2008 Counsel for the Appellants: The Appellant appeared in person Counsel for the Respondents: Mr O'Donnell Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 11 November 2008 Date of Judgment: 11 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1707.html