RAYMOND JOSEPH TUKAKI v THE COMMONWEALTH OF AUSTRALIA [2018] NZSC 109 [19 November 2018]

RAYMOND JOSEPH TUKAKI v THE COMMONWEALTH OF AUSTRALIA [2018] NZSC 109[19 November 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 83/2018[2018] NZSC 109BETWEEN RAYMOND JOSEPH TUKAKIApplicantAND THE COMMONWEALTH OFAUSTRALIARespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: C G Tuck for ApplicantF R J Sinclair for RespondentJudgment: 19 November 2018JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant is charged with six counts of serious violent and sexual offendingalleged to have been committed in the Northern Territory of Australia in 1998–1999.The Commonwealth of Australia seeks his extradition so that he can stand trial onthese counts in the Supreme Court of the Northern Territory.[2] In May 2017 the District Court found the applicant was eligible for surrenderunder Part 4 of the Extradition Act 1999.1 The District Court Judge also found thatthere was no basis to refer the applicant's case to the Minister of Justice unders 48(4)(a)(ii) of the Extradition Act. The applicant appealed to the High Court against1 Commonwealth of Australia v Tukaki [2017] NZDC 10792 (Judge Ingram).the finding that he was eligible for surrender and sought judicial review in relation tothe refusal to refer his case to the Minister of Justice. Both the appeal and theapplication for judicial review were dismissed.2 The applicant's appeal to the Courtof Appeal against both aspects of the High Court decision also failed.3 The applicantnow seeks leave to appeal to this Court against the Court of Appeal decision.[3] The applicant raises four grounds on which he says leave to appeal should begranted.[4] The first ground deals with the finding that it would not be oppressive tosurrender the applicant to Australia in light of the amount of time that has passed sincethe offending is alleged to have occurred and the fact that the applicant, a Māori, hasbuilt a new life for himself and now lives on tribal land where he is supported by hiswhānau in a traditional and culturally appropriate way.4 The applicant wishes to arguethat the meaning ascribed to "oppressive" by the Courts below (oppressing, harsh orcruel) was too restrictive. He wishes to argue that a more liberal meaning should begiven to recognise human rights, including indigenous human rights, which wouldfactor in New Zealand's obligations under international treaties and also the Treaty ofWaitangi as well as Maori values (tikanga human rights).[5] As the applicant acknowledges, "oppressive" sets a deliberately high threshold.The Court of Appeal's analysis recognised the significance of international obligationsand the Treaty of Waitangi.5 However, the Court did not consider that the facts of thecase demonstrated that extradition would be oppressive. We do not consider that thereis a sufficient factual basis for the argument that the applicant wishes to pursue on thispoint to justify leave being granted.[6] The second ground deals with the issue as to whether the applicant's caseshould have been referred to the Minister of Justice under s 48(4)(a)(ii). Thatprovision applies where a court is satisfied that the grounds for making a surrender2 Tukaki v The District Court at Tauranga [2017] NZHC 843 (Moore J).3 Tukaki v The Commonwealth of Australia [2018] NZCA 324 (Winkelmann, Simon France andWylie JJ) [Tukaki (CA)].4 Extradition Act 1999, s 8(1)(c).5 Tukaki (CA), above n 3, at [29]–[37].order otherwise exist but it appears to the court that, because of compelling orextraordinary circumstances of the person, it would be unjust or oppressive tosurrender the person before the expiration of a particular period. If that provisionapplies the court can refer the matter to the Minister of Justice, and the Minister mustthen determine whether the person is to be surrendered.6 The question as to themeaning of the term "oppressive" arises in relation to this ground as it did in relationto the first ground and our comments in relation to that ground apply equally in thiscontext. In addition, the applicant wishes to argue that the Court of Appeal was wrongto find there were not "compelling or extraordinary" circumstances for the purposesof s 48. Having considered the Court of Appeal's careful analysis of this issue, we donot consider there is sufficient prospect of success on this ground to justify the grantingof leave.7[7] Ground 4 deals with the issue of comity, but the arguments that the applicantseeks to raise in this context largely overlap with the second ground, and we see nobasis for granting leave on this ground.[8] Ground 3 relates to the admission of fresh evidence in the event that leave isgiven. In view of our conclusion that none of the grounds for the granting of leave issufficient to justify the granting of leave, this ground becomes irrelevant.[9] We do not consider that it is necessary in the interests of justice for the Courtto hear and determine the applicant's proposed appeal.8 We therefore dismiss theapplication for leave to appeal.Solicitors:Crown Law Office, Wellington for Respondent6 Section 49.7 Tukaki (CA), above n 3, at [42]–[52].8 Senior Courts Act 2016, s 74.