QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE ROYCE
| ALAN WOODCOCK
|- and -
|THE GOVERNMENT OF NEW ZEALAND
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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James Lewis Esq, QC (instructed by The Crown Prosecution Service) for the Respondent
Crown Copyright ©
Lord Justice Simon Brown:
"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 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."
"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."
"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 C."
"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 complainant. There was no material he could put to the complainant to establish that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes … which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. [Counsel] says that to say to a jury, when faced with allegations of the sort that were made here, 'I have not done it' is virtually no defence at all."
That, submits Ms Dobbin, is no less the position here.
"13. While the Courts recognise an inherent jurisdiction to prevent an abuse of process, there is no statutory or common law rule preventing a matter proceeding to trial when a complaint in respect of an offence had not been made until many years after the alleged criminal act took place. Indeed, there have been many cases going to trial throughout New Zealand over recent years involving alleged sexual abuse in which the complainant is giving evidence of events which may have happened 20 or 30 years ago or more. Such complaints often relate to incidents when the complainant was a child, but in which for a number of reasons the complainant has not taken the matter to the Police until recently. The Courts assess these cases on their individual merits and although pre-trial applications are sometimes made in such cases on the basis of undue delay, it would be an exceptional case for the Court to conclude that a delay of this kind amounted in itself to an abuse of process. It has been recognised by the Courts, and by the legislature, during recent years that there may be good reasons why complainants in cases involving sexual abuse have felt inhibited and unable to make complaints to the Police at an earlier time.
14. The approach of the Court of Appeal to this issue has recently been stated again in R -v- "O"  1 NZLR 347, at p350. The case involved a number of allegations of sodomy and indecent assault committed between 1973 and 1981. Delivering the judgment of the Court, Blanchard J said:
'Some prejudice to an accused is always likely when a prosecution is brought long after the event. There is an obvious inherent problem of memory for witnesses and accused alike. There will be very occasional cases where the lapse of time is so exceptionally long that it will clearly be impossible to have a fair trial. But ordinarily passage of time alone will not be sufficient to found a successful application to have a prosecution stopped. Avoidance of prosecution for a period of time does not diminish the criminal nature of the act alleged against an accused, though the advanced age of a defendant may have to be taken into account in sentencing if there is a conviction. As the Judge observed, there is no limitation period and no presumption that after a particular time memories will be too unreliable for the purposes of a criminal trial. Whatever the length and cause of delay, the central question is whether a fair trial can still take place in the particular circumstances. Are important defence witnesses no longer available? Have relevant documents been lost or disposed of? Is the complainant's evidence so fraught with memory problems that the accused is unfairly faced with trying to defend himself against accusations which are insufficiently specific in relation to place or circumstances? Concerns about pinpointing the exact time and place at which an incident has occurred may be greater when an isolated act of offending is alleged than they will be if a representative charge has been laid.
An absence of adequate explanation for lengthy complainant delay will not be good reason for stopping a prosecution if a fair trial is possible. Serious crime should normally be the subject of prosecution notwithstanding that a victim has chosen to delay making a complaint. That dilatoriness may, of course, assume significance as a matter of weight of evidence but, if there is a proper basis for a prosecution and a trial can be conducted fairly, mere absence of justification for the delay will not be a sound basis for a stay."
Mr Justice Royce: