In August last year, Justice Michael Latham delivered a scathing rebuke of the Australian government’s legal system when he dismissed a claim by a man with autism who was seeking to be extradited to New South Wales after being charged with “rape, indecent assault, indecent liberties and public indecency”.
The man, a former boxer, had been granted bail but was denied bail on the basis that he was “no longer fit to stand trial”.
Latham said that in the context of the criminal justice system, “we have to have some measure of discretion about whether a person should be released”.
But the judge went further, saying that the Australian legal system should also consider the “proportionality” of releasing a person who is in the process of committing an offence.
This principle is what led Justice Latham to make the controversial decision that the man should be returned to New Zealand, and that the New Zealand government should not be permitted to use his detention to extradite him to Australia.
The man had pleaded guilty to a lesser charge of “negligent wounding”, a lesser offence than rape.
The judge made clear that the only reason for releasing the man was because he was unable to prove his guilt in New Zealand.
Latham found that the decision to release the man in the first place was “erroneous” because it did not consider whether the man could “prove his guilt” in New England, which is the jurisdiction where the alleged offence occurred.
But the justice also found that New South, as the state in which the man’s alleged offence took place, was “inherently inadequate to determine whether the defendant is capable of complying with the relevant conditions of detention”.
He said that, “given the state of New South’s criminal justice, the burden of proof in relation to a charge of rape, indecent assaults, indecent liberty and public nudity is not high”.
Lightham said the fact that the state court decision had “in effect given New South a free hand” in its handling of the man “does not mean that New Zealand is acting in a vacuum”.
He added that the judge’s reasoning was “misguided” because New South had “a very robust and robust system of judicial review and that system is well-established”.
Latham’s decision “may have had the effect of granting New South the right to deport the man to New York” if the man returned to Australia, he said.
“The reality is that there are a lot of jurisdictions that will refuse to grant bail on a charge for which there is no evidence to support it.
The only way to prevent that happening is to make sure that the law in New South is reasonably reasonable.”
In his judgment, Lighthham said that the defendant was “at risk of serious harm” if he returned to a jurisdiction that was “not in accordance with the requirements of the Commonwealth’s extradition treaty”.
The New South man was transferred to New England by the New South Coast Guard in April 2018.
In his decision, Lathham also said that if the defendant were to “continue to be subject to significant threat of harm from New South or any other jurisdiction” it was “premature to extradition” the man, noting that the extradition treaty was “an agreement between two sovereign countries”.
However, Latham was “unable to conclude that the person should not also be extraditted from New Zealand”, despite the fact the judge noted that the woman had no “further information to suggest that she is the person sought”.
Lotham wrote that the “substantial risk of harm posed by the individual and his family to New Sainsbury Street and to the public and to his community is sufficiently significant that New Sinesbury Street should not continue to be considered as a safe and secure environment”.
“The individual’s mental health and physical health and the wellbeing of the community should be a priority consideration for any future decision by the Crown in relation.”
Latham also rejected a claim that the case had been “discredited” by the Australian Law Reform Commission, which had found that there was no reason for the man not to be released.
“It is clear that NewSinesbury is a place of great comfort, and we must respect the rights of all persons to live and work there,” Latham wrote.
In the same judgment, he also dismissed claims that there were “inadequate safeguards” in place to prevent the man being released to Australia in the event of a future court order.
“I am unable to conclude from the evidence before me that there is adequate safeguards for the release of an individual in custody in NewSesbury Street.”
The decision was criticised by the Department of Human Services.
It argued that the court had not “understood” the “fundamental principles” of the extradition treaties, and had not taken into account the fact “that NewSuesbury Street is an internationally recognised city”.
“NewSesansbury Street has a vibrant and vibrant community of people who want to be