Woodcock v Government of New Zealand, Court of Appeal - Administrative Court, November 14, 2003, [2003] EWHC 2668 (Admin),[2004] 1 All ER 678,[2004] 1 WLR 1979

Resolution Date:November 14, 2003
Issuing Organization:Administrative Court
Actores:Woodcock v Government of New Zealand
 
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Case No: CO/2523/2003Neutral Citation No: [2003] EWHC 2668 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLFriday 14th November 2003Before :THE RIGHT HONOURABLE LORD JUSTICE SIMON BROWNandTHE HONOURABLE MR JUSTICE ROYCE- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -Ms Clair Dobbin (instructed by Messrs Lewis Nedas) for the ApplicantJames Lewis Esq, QC (instructed by The Crown Prosecution Service) for the Respondent- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Simon Brown:1. The applicant is a fifty-five year old citizen of New Zealand, a one-time Roman Catholic priest whom the government of New Zealand seek to have returned for trial there in respect of a number of alleged sexual offences committed mostly in the early 1980s. He was arrested on 6 August 2002 pursuant to a formal extradition request. On 23 October 2002 the Secretary of State issued an authority to proceed. At a contested committal hearing at Bow Street Magistrates' Court on 5 February 2003 the District Judge found there to be a prima facie case against the applicant on all 19 of the charges he faces. These consist of 18 charges of indecent assault and one of buggery. There are a total of 11 complainants, all young male persons. The applicant was duly committed pursuant to s9(8) of the Extradition Act 1989 (``the 1989 Act'').2. Before the court now is a habeas corpus application to discharge the applicant pursuant to s11(3)(b) of the 1989 Act, which, so far as material, provides:``11(3) Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that-...(b) by reason of the passage of time since he is alleged to have committed it ... it would, having regard to all the circumstances, be unjust or oppressive to return him.''3. There are a number of authorities (reported and unreported) concerning the application of this well-known mandatory provision in various contexts. Prominent amongst them is Kakis -v- Government of the Republic of Cyprus [1978] 1 WLR 779 which makes plain (by reference to s8(3)(b) of the Fugitive Offenders' Act 1967, the materially identical predecessor provision) that ``unjust'' in the statute is ``directed primarily to the risk of prejudice to the accused in the conduct of the trial itself'', ``oppressive'' is ``directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration [from the date of the offence(s) to the present date]'', but ``there is room for overlapping, and between them they would cover all cases where to return [the accused] would not be fair'' (per Lord Diplock at pp 782-783).4. It is Ms Dobbin's submission before us that it would be both unjust and oppressive to return this applicant to New Zealand now after so many years: unjust because at this distance in time it will be virtually impossible for the applicant to defend himself against these allegations; oppressive because the applicant has made a new life for himself since leaving New Zealand in 1987.5. With that brief introduction let me turn next to the facts in a little more detail.6. Seventeen of the 19 alleged offences took place in 1982 - 1985. The other two are alleged to have occurred respectively in 1978 and in May or June 1987. At the date of the alleged offences the complainants were mostly under 18 (sometimes 15 or 16); four of the alleged indecent assaults, however, were allegedly committed when the complainants were aged respectively 18, 19, 19 and 22. The complainant in respect of five of the charges (one of buggery and four of indecent assault) was Terence C who was 15 at the date of the first alleged indecent assault, 16 at the date of the second, 17 at the date of the third and at the date of the alleged buggery, and 19 at the date of the final alleged indecent assault. The circumstances of all the alleged indecent assaults are depressingly familiar. They consist variously of mutual masturbation, oral sex, touchings of the genital region, rubbing of the accused's penis against the complainant's body and so forth.7. The applicant became a priest in 1972 and thereafter studied music. In 1982 he became a teacher at St Patrick's College, Silverstream, Wellington and taught there throughout that year. He then worked intermittently over the next five years at the Futuna Retreat House in Karori, Wellington before leaving New Zealand in 1987 to go to Ireland. He stayed in Ireland for some three years doing voluntary work with drug addicts. He then moved to London in 1990 and, having trained as...

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