TUKAKI v THE COMMONWEALTH OF AUSTRALIA [2018] NZCA 324

TUKAKI v THE COMMONWEALTH OF AUSTRALIA [2018] NZCA 324 [27 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA671/2017[2018] NZCA 324BETWEEN RAYMOND JOSEPH TUKAKIAppellantAND THE COMMONWEALTH OFAUSTRALIARespondentHearing: 19 June 2018Court: Winkelmann, France and Wylie JJCounsel: C G Tuck and R D Butler for AppellantF R J Sinclair for RespondentJudgment: 27 August 2018 at 12 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C No order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] The Commonwealth of Australia seeks Mr Tukaki's surrender on six countscharging serious violent and sexual offending. He is alleged to have offended in 1998and 1999 when living in the Northern Territory. Accordingly, any trial of these chargeswill take place in the Supreme Court of the Northern Territory.[2] Mr Tukaki appeals, as of right, Moore J's dismissal of his claim for judicialreview of Judge Ingram's refusal to refer Mr Tukaki's case to the Minister unders 48 of the Extradition Act 1999.1 He also appeals Moore J's dismissal of an appealagainst the same judgment of Judge Ingram in which the Judge found Mr Tukakieligible for surrender, rejecting his claim that extradition would be unjust or oppressivebecause of the amount of time that had passed since the alleged offending and in lightof his personal circumstances.[3] The right of appeal in respect of the finding that Mr Tukaki is eligible forsurrender is limited to an appeal on a question of law only and requires the grant ofleave. The Crown does not oppose the grant of leave. We are satisfied thatMr Tukaki's appeal raises important questions of law, in the extradition context, ratherthan issues specific to the facts of his case.2 Accordingly, we grant leave to appeal.Factual background[4] Mr Tukaki is 42 years of age and currently works as a self-employed contractorat Te Kaha in the Bay of Plenty. He is Māori. We gratefully adopt Moore J's summaryof the circumstances of the alleged offending:[6] In July 1998 Mr Tukaki met the adult complainant ("Ms M") whenshe was holidaying in New Zealand. They commenced an intimaterelationship which was suspended when the complainant returned to her homein Darwin.[7] The following month Mr Tukaki travelled to Darwin where hereconnected with Ms M. Their intimate relationship resumed resulting inMs M becoming pregnant to Mr Tukaki, who at that time used the surnameReid. The two charges of assault and the charge of sexual intercourse withoutconsent relate to events al1eged to have taken place between January 1999and March 1999 involving Ms M. The remaining charges relate to offendingalleged to have been committed by Mr Tukaki against J, one of Ms M's twoinfant children, between March and September 1999.[8] Mr Tukaki went on to have two children with Ms M. It is understoodthey both reside in Australia.1 Tukaki v District Court at Tauranga [2017] NZHC 843. As to the appeal right, see s 20 of theJudicial Review Procedure Act 2016.2 Criminal Procedure Act 2011, s 303(2). See McAllister v R [2014] NZCA 175, [2014] 2 NZLR764 at [36] for this Court's discussion of the principles for granting leave for a further appeal on aquestion of law under the Criminal Procedure Act.[9] In 2000 or 2001 Mr Tukaki returned to New Zealand and, with theexception of a short visit to Australia in 2002, has not returned.[10] The complaints were first made to the Northern Territory Police in2009 but it was not until 2013 that the decision to charge Mr Tukaki was made.[11] The charges were laid in July 2013. There then followed a number ofprocedural complications which finally led to an extradition request beingmade, warrants to arrest issued and the extradition documentation forwardedto New Zealand in May 2016.Mr Tukaki's evidence[5] In evidence filed in the District Court Mr Tukaki described how his return toNew Zealand in 2001 followed a period of "emotional isolation in Australia" whichleft him wanting to return to "whānau and a place of peace and healing". Since hisreturn he has established a new life in New Zealand with his wife and family.Mr Tukaki gives no further details of the family he has established since his return.Of his present circumstances now he says:I am a Māori living on my tribal land Te Whānau-ā-Apanui where I amsupported by whānau in a traditional and culturally appropriate way.People initially asked who I was when I returned from Australia — as they didnot recognise the name Reid. My name changed to my tipuna name of Tukaki,enabled people to know the family that I belong to. My name change hadnothing to do with avoiding detection and was done openly and formally.[6] If extradited to the Northern Territory he says he would have no ability toprovide for himself or family, or adequately prepare emotionally and legally for hisdefence. Given this circumstance, remand in custody would probably be the result.Being uprooted from his family and being placed in those circumstances would causehim extreme hardship.The statutory regime[7] Part 4 of the Extradition Act reflects one of the Act's stated objects, which isto provide a simplified procedure for New Zealand to give effect to a request forextradition from Australia.3 Extradition procedures between New Zealand andAustralia proceed by a simplified "fast track", endorsed warrant procedure.3 Extradition Act 1999, s 12(d).[8] Under s 45(2) of the Act, a person is eligible for surrender when the followingrequirements are met:(a) an endorsed warrant for the person's arrest has been produced tothe court; and(b) the court is satisfied that:(i) the person is an extraditable person in relation to the extraditioncountry; and(ii) the offence or offences are extradition offences in relation to theextradition country.[9] There are a number of grounds on which a court may find that a person is noteligible for surrender which include restrictions under ss 7 or 8 of the Act.[10] Section 7 sets out mandatory restrictions on surrender. Section 7 is not in issueon this appeal. Section 8 sets out discretionary grounds for restriction. Mr Tukakiargues the discretionary restriction on surrender under s 8(1)(c) of the Act applies sothat the District Court Judge should have determined he was not eligible for surrenderunder s 45(4). He bears the onus of establishing that a discretionary restriction onextradition applies in his case.4 Section 8 of the Act relevantly provides: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 inthe interests 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.4 Commonwealth of Australia v Mercer [2016] NZCA 503 at [29].(2) A discretionary restriction on surrender exists if the person has beenaccused of an offence within the jurisdiction of New Zealand (otherthan an offence for which his or her surrender is sought), and theproceedings against the person have not been disposed of.[11] The focus of s 8 is whether injustice or oppression arises out ofthe circumstances of the case. Personal circumstances may be relevant where there isa clear nexus between those circumstances and the delay or the lack of good faith inthe making of the accusation.5[12] The two grounds, "unjust" and "oppressive", overlap. The former is directedprimarily to the risk of prejudice in the conduct of the trial itself; the latter, to hardshipresulting from changes in the subject's circumstances that have occurred during theperiod between the alleged offending and the application for extradition.6 The reasonsfor delay by the requesting state may in some cases be relevant to whether there isoppression, but that issue is not pursued on appeal.7[13] If a court is satisfied that a person is not eligible for surrender due to amandatory or discretionary restriction applying, the person must be discharged unlessa party indicates they will appeal the decision.8[14] But even if the eligibility criteria for surrender under s 45 are met, and thereare no mandatory or discretionary restrictions on surrender, the court mustnevertheless assess whether the case is to be referred to the Minister of Justice unders 48.9 The grounds for referral to the Minister extend beyond the restrictions onsurrender under ss 7 and 8. They extend to personal circumstances, without the s 8requirements that those circumstances be connected to any delay in the proceeding orlack of good faith in the making of the accusation. If the case is referred, it is forthe Minister to determine if the person is to be surrendered.5 Mailley v District Court at North Shore [2013] NZCA 266 at [48].6 Kakis v Governor of the Republic of Cyprus [1978] 1 WLR 779 (HL) at 782.7 Commonwealth of Australia v Mercer, above n 4, at [53].8 Extradition Act, s 46(4). We recognise that there is some difficulty in reconciling this section withs 48(a)(i), but we leave that issue of statutory interpretation for another day.9 Normally when a New Zealand citizen is eligible for surrender the court must refer the case tothe Minister under s 48(1)(a). Where Australia is the extradition country, as it is here, the courtis not required to do so due to s 48(3).[15] If there is not a basis to refer the case to the Minister, the court mustimmediately make a surrender order.10[16] Section 48(4) is in issue in this case. It relevantly provides:48 Referral of case to Minister in certain circumstances(4) If—(a) it appears to the court in any proceedings under section 45that—(i) any of the restrictions on the surrender of the personunder section 7 or section 8 apply or may apply; or(ii) because of compelling or extraordinarycircumstances of the person, including, withoutlimitation, those relating to the age or health of theperson, it would be unjust or oppressive to surrenderthe person before the expiration of a particular period;but(b) in every other respect the court is satisfied that the groundsfor making a surrender order exist,—the court may refer the case to the Minister in accordance withsubsection (5).[17] Upon referral, s 49 applies and the Minister must then determine whether tosurrender the person. The Minister may refuse to do so,11 based on the criteria ins 30(2)–(4) or may defer extradition under s 51.Section 8 appeal[18] Although Mr Tukaki says that he has a wife and family in New Zealand heprovides no detail of this family. He does not, for example, claim particularresponsibilities to his family that will cause hardship should he be surrendered.Rather, this appeal as argued, is based squarely upon Mr Tukaki's Māori whakapapaand the fact that, since his return to New Zealand, he has built a new life for himselfwithin the cultural context of his people, Te Whānau-ā-Apanui. He has accepted andnow lives by the tikanga of Te Whānau-ā-Apanui. Ms Butler for Mr Tukaki says that10 Extradition Act, s 47(1).11 Section 49(1).by reason of his connection to his whānau, and his acceptance of tikanga as providingprinciples by which he should live his life, in all the circumstances of the case it isoppressive to surrender Mr Tukaki.[19] The specific grounds of appeal advanced are that Moore J:(a) was wrong to find that the words "because of" in s 8(1)(c) requires acausal relationship between the circumstances relied upon and the delay;and(b) applied an incorrect standard for oppression, defining it as "oppressing,harsh or cruel", requiring that Mr Tukaki make out "unusual"circumstances, and ignoring the importance of human rights.Did the Judge err in requiring a causal relationship between the circumstances of thecase and the delay?[20] Moore J found that there was a requirement for a "clear nexus" between thepersonal circumstances relied upon and the delay, in the sense that the circumstancesmust have come about because of the delay.12 He said that this requirement arose fromthe use of the words "because of" in s 8(1). In formulating this proposition, the Judgerelied upon the following passage from the decision of this Court inMailley v District Court at North Shore:13As regards the health issues, it is well established following the decision ofthis Court in Wolf v Federal Republic of Germany that the personalcircumstances of the alleged offender can come within the statutory phrase"all the circumstances of the case", and so be relevant to a s 8 inquiry, only ifthere is a clear nexus between those personal circumstances and the issues ofdelay and good faith. Mr Mailley's health issues in themselves could thereforenever have resulted in a discretionary restriction under s 8.(footnotes omitted)[21] We see no error in the Judge's formulation of the principle. Indeed, counselfor Mr Tukaki accepts that it is well established that there must be a "clear nexus"12 Tukaki v District Court at Tauranga, above n 1, at [52].13 Mailley v District Court at North Shore, above n 5, at [48] citing Wolf v Federal Republic ofGermany (2001) 19 CRNZ 245 (CA) at 254.between the circumstances and the delay. In reality, the issue Ms Butler takes is withthe application of the principle. Moore J said that none of the personal circumstancesrelied upon by Mr Tukaki came about because of the delay in investigating andprosecuting the matter, and therefore could not be relied upon under s 8. Mr Tukaki'sdecision to return to New Zealand, he said, was not linked to any delay in commencingthe prosecution but, rather, was a product of his election to change and improve hislife by returning to his tūrangawaewae and his whānau.[22] Although the Judge correctly articulated the legal principle, we agree that thisanalysis suggests that it is not the principle he applied. This is because it was notnecessary for Mr Tukaki to show that the delay in the prosecution caused the changein his personal circumstances, only that it allowed that change to occur. It is this sensein which the word "nexus" is used — the change in circumstances would not havehappened but for the delay. We do not see any basis upon which s 8 can be read downfrom this point. The words "all the circumstances of the case" are, on their face, wordsof very broad application capturing everything to do with the person and the criminalproceeding. The critical limitation is that the personal circumstance must be connectedto the passage of time since the offending or to the lack of good faith in the making ofthe accusation. In Mailley, we understand the point the Court was making to be nomore than that Mr Mailley's existing health conditions could not be connected to thedelay in any sense.[23] The approach we have outlined is consistent to that described by Lord Diplockin Kakis v Republic of Cyprus:14So one must look at the complete chronology of events and consider whetherthe happening of such of those events, as would not have happened before thetrial of the accused in Cypus if it had taken place with ordinary promptitude, hasmade it unjust or oppressive that he should be sent back to Cyprus to stand histrial now.[24] Looking at matters afresh then, can Mr Tukaki point to the required nexusbetween the delay and circumstances he relies on? Mr Tukaki says he has establisheda new family in New Zealand since his return, although provides scant detail of those14 Kakis v Governor of the Republic of Cyprus, above n 6, at 782.relationships. He says also that he has found deep connection to his whānau in itsbroadest sense, and to living life in accordance with tikanga. The change incircumstances emphasised is the value that Mr Tukaki ascribes to whānau and to livinghis life in accordance with tikanga.[25] We accept that if there had not been the delay, Mr Tukaki would not haveestablished his new family, and would not have developed the strong bonds withinTe Whānau-ā-Apanui that he has now. The real issue that arises under s 8(1)(c) iswhether Mr Tukaki has established that these circumstances make it oppressive forhim to be extradited.Did the Judge err in applying a wrong legal test for what can constitute oppressionfor the purposes of s 8?[26] Is extradition oppressive given Mr Tukaki's change in circumstances betweenthe date of the alleged offending and the extradition application? Moore J was notsatisfied that even if the necessary causal connection existed, the circumstancesreferred to would make it oppressive for Mr Tukaki to be extradited. He said:15Without in any way demeaning or devaluing the importance Mr Tukaki placesin his cultural roots what he will face is what any person claiming Māoriheritage, or indeed any person of non-Australian culture, might face whencharged with offending alleged to have been committed during a period theychose to live in Australia. It thus follows that Mr Tukaki's identity and valuesas Māori do not constitute "circumstances of the case" which render hisextradition oppressive in terms of s 8(1)(c).[27] Ms Butler argues the Judge was wrong to dismiss the significance ofMr Tukaki's tikanga rights. His approach was wrong because tikanga forms part ofthe law of New Zealand, as authorities such as Takamore v Clarke make clear.16She argues the modern approach to customary law is to try to integrate it into thecommon law where possible. This approach is required in the context of extraditionbecause of the Crown's obligations under the Treaty of Waitangi and New Zealand'scommitment to international covenants which require that those tikanga rights beupheld. In particular she points to:15 Tukaki v District Court at Tauranga, above n 1, at [57].16 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.(a) The relevance of the Treaty of Waitangi, which, in the words of theWaitangi Tribunal "entitles Māori interests to a reasonable degree ofprotection when those interests are affected by the internationalinstruments that the New Zealand Government negotiates or signs upto".17(b) The role of the United Nations Declaration of the Rights of IndigenousPeople in promoting the human rights dimension of the Treaty.18(c) Article 27 of the International Covenant on Civil and Political Rightsthat provides:19In those states in which ethnic, religious or linguistic minorities exist,persons belonging to such minorities shall not be denied the right, incommunity with other members of their group, to enjoy their ownculture, to profess and practice their own religion, or to use their ownlanguage.[28] Ms Butler argues that if Mr Tukaki is extradited he will be remanded in custodyor a detention centre while he awaits trial. If he is found guilty at trial it is inevitablehe will face a lengthy period of imprisonment in a Northern Territory prison. He willbe deprived of his whānau connections and the ability to live a tikanga life. The facthe is Māori and identifies with tikanga, makes him inherently more vulnerable if hedoes not have his people with him, and giving rise to circumstances which wouldconstitute oppression for the purposes of s 8.Legal principles[29] It is not appropriate to attempt a comprehensive definition of oppression forthe purposes of s 8, or more broadly the Extradition Act, given the multiplicity ofcircumstances in which the issue may fall to be considered. It is possible to say17 Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law andPolicy Affecting Māori Culture and Identity, Taumata Tuatahi (Wai 262, 2011) at 236.18 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 A/61/L67 (2007),affirmed by New Zealand on 20 April 2010.19 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16December 1966, entered into force 23 March 1976).however that the threshold for oppression is high.20 The very use of the word"oppression" signifies that. It is also implicit in the scheme of the Extradition Actthat the usual and inevitable consequences of extradition are not, of themselves,"oppressive". The act of extradition is inherently disruptive and distressing. It mayinvolve the forcible removal of an individual from their home country, and commonlyinvolves the removal of an individual from their family.[30] As Simon Brown LJ observed in Woodcock v Government of New Zealand:21I would add just this with regard to the concept of oppressiveness insection 11(3)(b). As I observed during the course of argument, it seems to mein any event puzzling in present times why someone should be able to improvetheir chances of escaping trial by travelling abroad and then changing theircircumstances in their new country of residence. Why, say, should anAustralian who has committed a series of frauds in Sydney then be betterplaced to escape trial (through it being found oppressive to extradite him) ifhe moves to England than if he moves to Darwin? The court should to mymind be wary of paying excessive heed to "hardship to the accused resultingfrom changes in his circumstances" following upon the accused's move toanother country when equivalent hardship is likely to have occurred even hadhe remained in his country of origin.[31] The public interest in extradition explains the threshold set in ss 7, 8 and 48.In HH v Deputy Prosecutor of the Italian Republic, Genoa Lady Hale explained thepublic interest as follows:22There is a constant and weighty public interest in extradition; that peopleaccused of crimes should be brought to trial, that people convicted of crimesshould serve their sentences; that [in that case] the United Kingdom shouldhonour its treaty obligations to other countries; and that there should be no"safe havens" to which either can flee in the belief that they will not be sentback.[32] To similar effect is the statement by this Court in Radhi v District Court atManukau that extradition "involves an element of international reciprocity ofconsiderable public interest to New Zealand".2320 Commonwealth of Australia v Mercer, above n 4, at [52].21 Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979 at[26].22 HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 at[8(4)].23 Radhi v District Court at Manukau [2017] NZCA 157, [2017] NZAR 692 at [34].[33] Notwithstanding the strong public interest in extradition, the Extradition Actexpressly contemplates that there will be a careful consideration of the circumstancesof the case to determine whether a mandatory or discretionary restriction applies.[34] We accept Ms Butler's submission that New Zealand's internationalobligations are relevant to the interpretation and application of the mandatory anddiscretionary restrictions. It is a well-established rule of statutory interpretation that,where possible, statutes should be interpreted consistently with international treaties.That rule takes the form of a presumption articulated by this Court in this way:24We begin with the presumption of statutory interpretation that so far as itswording allows legislation should be read in a way which is consistent withNew Zealand's international obligations That presumption may applywhether or not legislation was enacted with the purpose of implementing therelevant text In that type to case national legislation is naturally beingconsidered in the broader international legal context in which it increasinglyoperates.[35] The Treaty of Waitangi is also relevant to issues of statutory interpretation.In New Zealand it has an elevated status owing to its constitutionally-foundationalsignificance.25[36] While some statutes expressly incorporate the principles of the Treaty ofWaitangi — for example the State-Owned Enterprises Act 1986 — the absence of sucha reference is not a bar to using the Treaty as an interpretive aid. That position wasrecently approved by this Court in Ngaronoa v Attorney-General:26[46] Today it can be stated with confidence that, even where the Treaty isnot specifically mentioned in the text of particular legislation, it may, subjectto terms of the legislation, be a permissible extrinsic aid to statutoryinterpretation.24 New Zealand Air Line Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at289. See also Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188,[2015] 1 NZLR 383 at [40]: "it is well established in New Zealand that if statutory provisions canbe interpreted in a way that is consistent with New Zealand's international obligations, they shouldbe so interpreted".25 On the importance of the Treaty of Waitangi as a statutory aid, see generally R I CarterBurrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 519–533.26 Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 (footnotes omitted).Though it is worth noting that at [52], this Court ultimately held that the issues of interpretation atissue could not be resolved by reference to the Treaty principles.[37] This Court in Takamore v Clarke more recently referred to the relevance ofthe Treaty of Waitangi in both statutory interpretation and in judicial review:27 as Dr Matthew Palmer discusses in his recent work, despite the fact thatrecently that question has not directly confronted the courts [whetherthe Treaty modifies common law], the courts have nonetheless enforcedthe Treaty indirectly in a number of ways.[28] First, the Treaty has been heldto be an extrinsic aid to statutory interpretation, even where it is not itselfmentioned in the text of the legislation.[29] Secondly, it may have"direct impact" in judicial review[30] — whether for example as a mandatoryconsideration,[31] or potentially as providing the basis for a legitimateexpectation.[32]Application to Mr Tukaki's appeal[38] What of the circumstances Mr Tukaki points to? Although Mr Tukaki failedto provide any evidence, we are prepared to take judicial notice of the fact thatwhanaungatanga is one of the fundamental precepts of tikanga, and indeed Māorisociety. Such values can be weighed in the interpretation and application of s 8. It isnot of course only in Māori society that the family unit is accorded special status.Article 10 of the United Nations International Covenant on Economic, Social andCultural Rights records state parties' recognition that "[t]he widest possible protectionand assistance should be accorded to the family, which is the natural and fundamentalgroup unit of society"33 Each culture defines the family unit differently. We acceptfor the purposes of this hearing, notwithstanding the absence of any evidence producedby Mr Tukaki, that the whānau to which he now has a deep connection and which hewill suffer if separated from, is broader than his immediate family and extends to hishapū and iwi. We understand that to be the gist of his case.[39] We do not think that Moore J was wrong to ask himself whether there wasanything unusual in the consequences for Mr Tukaki. If the consequences are no morethan the inevitable consequences of extradition, then to allow that they meet the27 Takamore v Clarke, above n 16, at [248] per Glazebrook and Wild JJ.28 M S R Palmer The Treaty of Waitangi in New Zealand's Law and Constitution (Victoria UniversityPress, Wellington, 2008) at 199–215.29 Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 223; andBarton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) at 184.30 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.31 Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA).32 See for example Thomas J's dissent in New Zealand Maori Council v Attorney-General [1996]3 NZLR 140 (CA).33 International Covenant on Civil and Political Rights, above n 19.threshold of oppression would be to create the "safe havens" referred to inHH v Deputy Prosecutor of the Italian Republic, Genoa.34[40] We accept that the removal of a person from their culture, cultural practicesand whānau can all be factors to be weighed under s 8. Mr Tukaki can put his case nohigher than that removing him from the connections and support available to him inTe Whānau-ā-Apanui, and transplanting him to a place where he has no support, willcause extreme hardship. But disruption of that type is a usual incidence of extradition.Mr Tukaki does not describe any particular hardship that will flow from thatdisruption, no particular relationship that will be harmed, no particular responsibilitythat will be foregone which makes the usual incidence of extradition so acute in hiscase as to reach the threshold of oppression.[41] Mr Tukaki also raises the absence of culturally appropriate rehabilitationprogrammes in the Northern Territory. Again, we do not consider that could reach thelevel of oppression. Many who are imprisoned in New Zealand and elsewhere do nothave the benefit of culturally appropriate rehabilitation programmes.Referral to the Minister[42] The next issue on this appeal is whether Mr Tukaki's case should have beenreferred to the Minister under s 48(4)(a)(ii). Multiple grounds of appeal are advancedfor Mr Tukaki, but they can be reduced to the following — Moore J applied too higha standard for what could amount to oppression; he improperly placed insufficientweight on the importance of Mr Tukaki's "tikanga human rights" and improperlyemphasised the principle of comity.[43] Moore J was not satisfied that the circumstances relied upon by Mr Tukakiwere extraordinary or compelling. He continued:35Neither do I accept Mr Tuck's submission that a liberal reading of the statutorygrounds for refusing extradition requires priority to be given to tikanga Māoriover the importance and significance of comity in international relations.34 HH v Deputy Prosecutor of the Italian Republic, Genoa, above n 22, at [8(4)] per Lady Hale.35 Tukaki v District Court at Tauranga, above n 1, at [77].[44] We see no error in the Judge's approach to whether Mr Tukaki had dischargedthe onus upon him to show it would be oppressive to require his surrender. There areno compelling or extraordinary circumstances Mr Tukaki can point to, and nor, as wehave held, would requiring his surrender be oppressive. Again, as previouslydiscussed, while Mr Tukaki's commitment and connection to his culture, and to hiswhānau in its broadest sense is something to be weighed, removing him from thoseconnections cannot be said to be oppressive.[45] As to Moore J's reference to international comity, we understand him to havebeen referring to the reciprocal international obligations involved in extraditionwhereby a person alleged to have offended is returned by a requested state to arequesting state to face trial. We agree with Ms Butler that the importance of thosereciprocal obligations does not displace the necessary inquiry under ss 8 and 48, but itis a factor to be weighed when determining what constitutes extraordinary orcompelling circumstances. We are satisfied the Judge did undertake the necessaryinquiry as to whether Mr Tukaki had shown compelling or extraordinarycircumstances that rendered his surrender oppressive.[46] We make mention of a Canadian case, United States v Leonard, referred to usby the Crown.36 We accept the Crown's submission that it provides a useful contrastto the claims put forward by Mr Tukaki.[47] Under Canadian legislation, the Minister of Justice must, in every case,determine whether an eligible person should be surrendered.37 Section 44 providesthat the Minister shall refuse surrender if satisfied that "the surrender would be unjustor oppressive having regard to all the relevant circumstances". In Leonard, theextradition of two offenders was sought for importing drugs into the United States.Both were Aboriginal. The Minister had decided that both should be surrendered.The Ontario Court of Appeal held that in reaching that decision, the Minister madetwo significant errors.38 He had concluded it was wrong to weigh what has come tobe called the Gladue principles, which require that Canadian courts take into account36 United States v Leonard 2012 ONCA 622, 112 OR (3d) 496.37 Extradition Act SC 1999 c 18.38 United States v Leonard, above n 36, at [59].the specific and particular problems faced by Aboriginal offenders when sentencingthem.39 There was evidence of Mr Leonard's family history over several generations.It showed that he had "suffered from the litany of disadvantages that theSupreme Court of Canada has attributed to Canada's sorry history of discriminationand neglect in relation to Aboriginal peoples".40[48] The Court held that the principles for sentencing Aboriginal offenders shouldbe considered by all decision-makers who have the power to influence the treatmentof Aboriginal offenders in the justice system whenever an Aboriginal person's libertyis at stake, including extradition.41[49] The second error was that the Minister had wrongly characterised his choiceas being to surrender the two men to face justice elsewhere or to allow them to escapeprosecution altogether.42 But it was common ground they could both be prosecuted inCanada. If they were, and they were convicted, their status as Aboriginal offenderscould be taken into account.[50] The Court held that:[94] It would be contrary to the principles of fundamental justice to surrender thisyoung Aboriginal first-offender to face a lengthy, crushing sentence inthe United States that would almost certainly sever his ties to his family andAboriginal culture and community with which he so closely identifies. Leonard'spersonal history corresponds precisely with the factors identified in Gladue andIpeelee as requiring special consideration. It is clear that he will not get thatconsideration if surrendered to the United States and that he did not get it here fromthe Minister of Justice. His involvement in the alleged offence was, at worst,peripheral, and he has made substantial strides towards rehabilitation since hisapprehension. I recognize that there is a considerable body of authority to the effectthat extradition will not be refused simply because the person sought will receive alengthier sentence in the foreign state: see, e.g. United States v. K. (J.H.) (2002), 165C.C.C. (3d) 449 (Ont. C.A.) However, in this case, the sentence the applicant facesin the United States — about 15 to 19 years, as compared to a conditional or shortcustodial sentence in Canada — is so grossly disproportionate in light of theapplicant's personal circumstances that I conclude this is one of those exceptionalcases where the "shocks the conscience" test outlined in Burns has been met.39 At [60], referring to the principles set out in R v Gladue [1999] 1 SCR 688.40 At [7]–[11].41 At [85].42 At [61].[51] The Court did attach weight to the severing of ties to Mr Leonard's family andAboriginal culture and community. But that was only one consideration. There weremany additional matters that the Court took into account that distinguish the presentcase from Leonard. One of the more significant is that Mr Tukaki cannot be tried inNew Zealand for the alleged offending. The choice here is stark. He is eithersurrendered for extradition, or New Zealand operates as a safe-haven for him on thatcharge. The Court in Leonard also gave weight to the gross disparity in sentencingoutcomes for Mr Leonard, should he be extradited. Again, that factor is not present inthis case. The personal circumstances relied upon by Mr Leonard were alsocompelling. He was young, he produced evidence of a life affected by the systemicdiscrimination and disadvantage borne by many Aboriginals, and it was accepted thathis extradition would result in his young child being placed in foster care.[52] Finally, we note that the Crown addressed submissions to us as to the meaningof the expression "for the expiration of a particular period" used in s 48(4)(a)(ii).There is an issue, discussed but not resolved by the Supreme Court in Radhi as towhether a court may only refer a case to the Minister if it is a temporary condition thatmakes it unjust or oppressive to surrender, in the sense that it will cease to exist aftera particular period expires.43 That is not an issue we need address. Whateverinterpretation is correct, Mr Tukaki's case falls well short.Result[53] The appeal is dismissed.[54] We make no order for costs.44Solicitors:Crown Law Office, Wellington for Respondent43 Radhi v District Court at Manukau [2017] NZSC 198, [2018] 1 NZLR 480 at [26]–[27], [57], [65]and [92].44 Crown did not seek costs.