Woodcock v New Zealand
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown |
| Judgment Date | 14 November 2003 |
| Neutral Citation | [2003] EWHC 2668 (Admin) |
| Docket Number | Case No: CO/2523/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2003 |
[2003] EWHC 2668 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Simon Brown and
The Honourable Mr Justice Royce
Case No: CO/2523/2003
Ms Clair Dobbin (instructed by Messrs Lewis Nedas) for the Applicant
James Lewis Esq, QC (instructed by The Crown Prosecution Service) for the Respondent
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").
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."
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).
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.
With that brief introduction let me turn next to the facts in a little more detail.
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 Carter 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.
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 an adult therapist, took up a position providing counselling and crisis intervention for passengers and staff at Heathrow Airport. He has lived and worked in this country ever since.
Most of the complainants had encountered the applicant whilst they were pupils as St Patrick's College. Some, however, came to know him later at the Futuna Retreat House. It is unnecessary for present purposes to describe their individual accounts of the particular circumstances in which these various alleged offences took place.
Complaints were first made to the New Zealand police respectively by Terence Carter on 13 October 1994 and by Mark Angus (the complainant in respect of an alleged indecent assault in May or June 1982 at St Patrick's College) on 12 April 1995. There was some supporting evidence too at that time, in particular from another pupil at the school who alleged that he had been propositioned albeit not physically assaulted, in the same way as Mark Angus. Consequent upon those complaints Interpol Wellington in April 1996 requested Interpol London if possible to interview the applicant. In June 1996, however, the applicant refused to be interviewed. In the result no request for extradition was made at that time. In evidence recently sworn in these proceedings, Detective Sergeant Mills of the Wellington police explains that as follows:
"There being only two complainants; the matters were historical; lack of an interview and admissions from the subject."
He further records that the police officer at Interpol Wellington stated in his covering report in 1996:
"I can say at this stage that this matter is one [for] which extradition is possible but not probable."
Also in 1996 Terence Carter brought a civil action against St Patrick's College for damages to compensate him for the abuse he alleges he suffered whilst a pupil there, an action which in 2001 the college settled out of court with no admission as to liability.
There matters rested until 30 June 2002 when a documentary called Sunday was shown on New Zealand television featuring an interview with Terence Carter. There followed all the remaining complaints as well as statements from a number of supporting witnesses, all clearly prompted in one way or another by the television programme. DS Mills states that the reasons offered by these complainants for not having complained earlier included:
"They did not think they would be believed.
Making a complaint wasn't seen as the thing to do.
Now had courage to make complaint as others had now gone public.
Circumstances of the alleged offending were accepted as occurring now by the Catholic Church and the general public.
They thought they were the only ones it had happened to."
In a witness statement made in these proceedings on 3 November 2003 the applicant denies all the allegations made against him and states:
"I have not lived in New Zealand for 16 years. I have made a life for myself in the United Kingdom. In the intervening years I have trained as a therapist, worked, bought a home and made firm friendships. No-one has ever in that time made any complaint about my conduct.
The allegations date back as far as 1978. I have read the contents of the allegations made against me in the extradition bundle. I do not see how I can defend myself against allegations that are so old. I have little recollection of dates and times going back that far. I am not even able to recollect some of the persons referred to in the extradition papers. I am worried about the way in which the allegations were made in a cluster following a television programme that described how I was alleged to have abused Terence Carter."
The main thrust of Ms Dobbin's able and forceful argument was directed to the difficulty —she submits, I think, impossibility —of having a fair trial of these charges so long after the offences are said to have taken place, on average some 20 years ago. She points out that the charges are based solely on accusations, unsupported by any documentary or "forensic" (meaning scientific) evidence. It is, she submits, inevitable after so long a delay, when even the complainants cannot assert with any accuracy when the assaults are alleged to have occurred, that the applicant will be severely impeded in establishing his defence.
The authority upon which Ms Dobbin most particularly relies is R -v—B [2003] 2 Cr App R 13 in which the Court of Appeal (Criminal Division) allowed an appeal against conviction in a sex abuse case even though the trial process itself could not be faulted. As Lord Woolf CJ put it:
"28. In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not … able to conduct any proper cross-examination of the...
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