DAFFUE v REPUBLIC OF SOUTH AFRICA [2022] NZHC 2722

DAFFUE v REPUBLIC OF SOUTH AFRICA [2022] NZHC 2722 [20 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-325[2022] NZHC 2722BETWEEN DANIEL DAFFUEAppellantAND REPUBLIC OF SOUTH AFRICARespondentHearing: 17 October 2022Appearances: G Harvey and E McClay for AppellantS Barr for RespondentJudgment: 20 October 2022JUDGMENT OF LANG J[on appeal against finding as to eligibility for surrender]This judgment was delivered by me on 20 October 2022 at 11 am.Registrar/Deputy RegistrarDateSolicitors:Public Defence Service, AucklandR Mansfield KC, Auckland[1] Mr Daffue has been charged in the Republic of South Africa (the Republic)with alleged sexual offending against his two daughters and a stepdaughter between1998 and 2008.[2] Mr Daffue emigrated to New Zealand in 2008 and is now a citizen of thiscountry. The Republic has applied for him to be extradited to face trial in South Africa.[3] In a decision issued on 25 August 2022 Judge C H Bennett found thatMr Daffue was eligible for surrender under s 24 of the Extradition Act 1999 (the Act).1Mr Daffue appeals against the Judge's decision.Jurisdiction[4] The right of appeal against a determination that a person is eligible forsurrender is limited to a question of law.2 Further, s 72(2)(a) of the Act provides thatthis Court on appeal must not have regard to any evidence of a fact or opinion that wasnot before the District Court when it made the determination subject to appeal.The statutory scheme[5] A request for extradition must be transmitted to the Minister of Justice andsupported by the documents specified in s 18(4) of the Act. Once a request has beenmade, the Minister may provide a District Court Judge with written notification of therequest, and ask that the Judge issue a warrant for the arrest of the person whoseextradition is sought.3[6] Following arrest, the District Court is required to determine whether the personis eligible for surrender under s 24 of the Act. This requires the Court to determinewhether the requirements set out in s 24(2) have been met. In addition, under s 24(4),the Court may determine that a person is not eligible for surrender if satisfied that adiscretionary restriction applies under section 8.[7] Section 8 relevantly provides:1 Republic of South Africa v Daffue [2022] NZDC 10526.2 Extradition Act 1999, s 68.3 Sections 19 and 20.8 Discretionary restrictions on surrender(1) A discretionary restriction on surrender exists if, because of—(a) the trivial nature of the case; or(b) if the person is accused of an offence, the fact that theaccusation against the person was not made in good faith in theinterests of justice; or(c) the amount of time that has passed since the offence is allegedto have been committed or was committed,—and having regard to all the circumstances of the case, it would beunjust or oppressive to surrender the person.[8] If a person is found eligible for surrender under s 24, the Minister must thendecide, under s 30, whether the person is to be surrendered. Section 30 permits theMinister to take into account a wide range of factors, including the possibility that adiscretionary restriction applies under s 8.4 The Minister also has the ability unders 30(3)(d) to take into account any compelling or extraordinary circumstances of theperson. These include, without limitation, those relating to age or health that wouldmake it unjust or oppressive to surrender the person. Section 30(3)(e) confers an open-ended discretion on the Minister to decline surrender for "any other reason".Issues[9] Mr Daffue does not challenge the Judge's conclusion that the Republic hadestablished the threshold requirements for a finding of eligibility under s 24(2). Theissues raised on appeal relate only to the Judge's conclusion that he had not establishedthe existence of any discretionary restrictions under s 8.[10] Mr Daffue contends that the Judge erred in law in rejecting his submission thata discretionary restriction existed under s 8(1)(b). He says that there was an absenceof good faith arising from prosecutorial delay by the South African authorities andtheir use of the extradition process to ensure he was detained before trial.4 Section 30(3)(b).[11] Mr Daffue also contends that a discretionary restriction existed under s 8(1)(c)because of the length of time that had passed since the offences were allegedlycommitted. He argues that, having regard to all the circumstances of the case, theJudge ought to have concluded that it would be unjust or oppressive to find himeligible for surrender.DecisionLack of good faith[12] I do not need to analyse the approach taken by the Judge in dealing with thisissue because I consider there is a fundamental flaw in the argument advanced onMr Daffue's behalf. As will be evident from the wording used in s 8(1)(b), a restrictionon surrender may be established where the accusations against the person were notmade in good faith and/or in the interests of justice.[13] Mr Daffue does not suggest the complainants have made their accusationsother than in good faith or that they made them for a purpose not connected with theinterests of justice. Nor does he contend the authorities in the Republic have laid thecharges and sought his extradition for a collateral purpose unconnected with theinterests of justice. His argument is based on the procedural approach they adoptedafter the charges were laid. I do not consider this engages s 8(1)(b).Prosecutorial delay[14] The argument for Mr Daffue under this ground is that there has been inordinatedelay by the Republic both in laying charges and pursuing the request for extradition.He says extradition would now be oppressive or unjust because he will be required tospend time awaiting trial in South Africa in prisons that are overcrowded, and in whichhe is at high risk of contracting diseases.[15] Inordinate delay by a country seeking extradition may be one of thecircumstances the Court takes into account in considering whether extradition wouldbe unjust or oppressive.5 However, it is not the test. The issue for determination under5 Commonwealth of Australia v Mercer [2016] NZCA 503 at [53].s 8(1)(c) is whether the amount of time that has passed since the offence was allegedlycommitted means that, in all the circumstances, it would now be oppressive or unjustto surrender the person. It is therefore necessary for Mr Daffue to show a link betweenthe 14 years that have elapsed since 2008 and the circumstances upon which he reliesto establish oppression and injustice. It is not necessary for him to show that the delayhas caused any change in circumstances. It is sufficient for him to demonstrate thatthe delay allowed the change to occur.6[16] One example of such a case is Curtis v Commonwealth of Australia.7 In thatcase the appellant was alleged to have committed sexual offences in Australia between2009 and 2010 when he was 14 to 15 years of age. He moved to New Zealand in 2011and had built a new life for himself here by the time he was served with an extraditionwarrant in May 2016. He was in a long-term relationship and had obtained educationalqualifications. There had been a delay of five years since the offences were allegedlycommitted, and the appellant had not been responsible in any way for that.[17] The delay also meant the appellant would be sentenced as an adult if foundguilty of the charges. This meant he was at greater risk of a sentence of imprisonmentthan would have been the case if he had been sentenced earlier. In addition, the delayhad induced in the appellant a sense of security that he would not be prosecuted.Furthermore, there was no guarantee he would be able to obtain a stay of theproceedings in Australia on the grounds of delay. The Court of Appeal concluded thatthese factors rendered it oppressive and unjust for the appellant to be extradited toAustralia.8[18] In the present case Mr Daffue has not established any link between the lapseof time that has occurred since the alleged commission of the offences and currentprison conditions in the Republic. There is nothing before the Court to suggest thatprison conditions in South Africa have deteriorated since 2008 to the point where itwould now be unjust and oppressive for Mr Daffue to be surrendered.6 Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [22].7 Curtis v Commonwealth of Australia [2018] NZCA 603, [2019] 2 NZLR 621.8 Above n 7, at [129]-[130].[19] I also accept Mr Barr's submission for the Republic that the material Mr Daffuerelied upon to establish the unsatisfactory nature of prison conditions in South Africawas wholly inadequate. This comprised articles in magazines and journals. Theycannot be regarded as authoritative expositions of the current (or past) state of prisonconditions in South Africa.[20] Finally, I accept Mr Barr's submission that the Minister would be entitled toenquire into this issue when he makes a determination under s 30 of the Act. If theMinister considers it to be of any relevance, he can seek advice from the Republicregarding the likelihood of Mr Daffue being remanded in custody followingextradition and the conditions he is likely to encounter. Those issues fall well beyondthe scope of the enquiry the Court is equipped to undertake in the present context.Result[21] The appeal is dismissed.Lang J