NZ court refuses to hand over man to Aust

NSW police want Kiwi athlete to face historic sex abuse charges

A New Zealander accused of sexually abusing a girl in Australia nearly a decade ago could face extradition despite our courts refusing to surrender the young man.

The ongoing case is one of many extradition scenarios released to the Weekend Herald by the Ministry of Justice under the Official Information Act.

Born in New Zealand in the mid1990s, the boy — now a champion athlete — moved to Australia in 2008 to stay with his father, who began living with his partner and her 10-year-old daughter.

However, in 2010 the girl, with the support of her family, made a complaint to New South Wales Police, alleging the Kiwi teen sexually abused her.

But the New Zealand Court of Appeal has now blocked the extradition, saying the “high threshold has been crossed”.

“This is one of these rare cases where surrender to Australia should be restricted.”

Before the courtroom debates and diplomatic arguments were held, the then teen’s family, including his father, and with the help of outside agencies, agreed he would be sent to a youth refuge home to receive treatment and counselling after the incident. Sydney police also accepted the family’s wishes, rather than prosecute.

In the final days of 2010, with consent of the community centre and the girl’s family, the Kiwi teen travelled with his father and his partner to New Zealand for a holiday.

They visited the teen’s mum and other family members, who decided the young man would stay with his mother, who had legal custody of him, and later attend high school in Auckland.

But, in 2011, New South Wales Police decided to lay seven sex charges against the teen after the girl’s family asked for a prosecution.

The following year, the teen’s father committed suicide after an argument with the girl’s mum.

Australian prosecutors proceeded with the case and in mid-2012 a Sydney court issued an arrest warrant for the Kiwi. Later that year, Detective Senior Constable Robert Potts, the Sydney officer in-charge of the case, also obtained approval to commence extradition proceedings.

In December 2012, Potts visited the teen at his home. A New Zealand detective spoke to the teen in the driveway about his school life and also spoke to his grandmother, while Potts waited by the police car.

At no stage throughout 2012, as Potts and Australian authorities planned their case against the teen, was the young man or his family told of the charges or a potential extradition. New South Wales Police submitted

an extradition request along with the first arrest warrant eight months later, but New Zealand authorities rejected it because of “differences in our countries’ youth justice systems”.

In mid-2013, Potts provided a replacement arrest warrant — but a second extradition request was also refused by New Zealand.

A third extradition request was submitted in January 2016.

In the meantime, however, the teen had voluntarily visited Australia twice — in January and March 2016.

There was an arrest alert issued which should have alerted NSW Police of the teen’s return, but it had lapsed and so he was able to return to New Zealand without incident.

The warrant for his arrest was finally served on the Kiwi in May 2016 and court proceedings here commenced as he fought to stay in the country. Despite a delay of almost six years between the police complaint and the extradition papers, the New Zealand District Court ordered the teen be surrendered to Australia.

The High Court upheld the decision on appeal. But three Court of Appeal judges disagreed.

Justices Christine French, Raynor Asher and Denis Clifford quashed the surrender order and warrant for detention order in their December judgment.

The judges said the delays in the case were the fault of the Australian authorities and not the teen and the hold-up “deprived [the teen] of the opportunity to be dealt with in Australia as a 14 or 15-year-old youth”.

“Today he will be sentenced as an adult, albeit his culpability will be assessed taking into account that the offending took place when he was a child.” The judges said if the man was extradited his transition “from childhood to adulthood will be materially disrupted, if not destroyed”.

No decision has yet been made on whether Australian Government lawyers will appeal to the Supreme Court.

The New Zealander, who denies the allegations and has no criminal convictions, has also asked for his case to be referred to the Minister of Justice.

Andrew Little’s office did not reply to a request for comment by deadline.

For all its faults, especially on the subject of extradition, Australia is one country that could be expected to have the confidence of New Zealand law courts. Yet the case we report today suggests that confidence has serious limits.

A young man now in his 20s is wanted in Australia for an alleged sexual assault committed when he was aged 14, against the 10-year-old daughter of his father’s partner.

Judges in the New Zealand Court of Appeal have declined an extradition request from Australian police because the law governing juvenile crime is evidently different there from here and the judges fear that if found guilty he would be sentenced as an adult.

The case has some complicating features. Initially the police acceded to the family’s wish that he not be prosecuted. The family, including his father, decided he would be sent to a youth refuge for treatment and counselling. But near the end of that year, he came back to New Zealand on a visit with his father and his father’s partner and, while here, his mother, who had legal custody of him, decided he should stay.

He has been here since apart from two visits to Australia in 2016. He finished high school here and now has a promising athletic career. He has no convictions. He made those visits to Australia unaware, it seems, that fully five years earlier New South Wales police had issued a warrant for his arrest, the girl’s family having changed their mind about pressing charges the year after the incident.

New South Wales police did not seem to know he was there, which seems extraordinary because over the previous three years they had made several applications to New Zealand for his extradition. Their officer on the case had even visited this country and spoken to him after the first application. Yet the first the young man knew of the charges and the extradition requests was in May 2016, almost six years after the alleged offence.

New Zealanders will be less interested in the finer points of extradition law than the question of whether justice will be served. No criticism should be made of the alleged victim’s family for changing their mind about seeking a prosecution. The discussion of sexual crime in recent years has highlighted the fact that the damage these crimes do can last a long time and it has become not unusual for victims to act on the realisation that not enough was done about the crime at the time.

Nor should the Australian police be criticised for pursuing the case so far. Police in all countries like ours

New Zealanders will be less interested in the finer points of extradition law than the question of whether justice will be served.

have been criticised for not taking sexual complaints seriously enough in the past. It falls to the courts to decide whether justice is served by sending a person to face trial as an adult for something he may have done at 13 or 14.

The difficulty of that decision is evident in the fact a District Court and the High Court in this country ordered the young man be surrendered to Australia before the order was quashed on appeal in December. Now it could go to our Supreme Court and ultimately the Minister of Justice might be presented with the dilemma.

Jusice demands that the alleged crime ought to be heard by a court of law.