Beresford v Australia

For a Category 2 extradition request, the requesting state need not establish a prima facie case. It must describe the alleged conduct sufficiently to enable the court to decide whether it constitutes an extradition offence and is punishable in the requesting state. The existence of other evidence which may be inconsistent with that description does not invalidate a request which fairly and accurately reflects the complainant’s account.

When considering whether delay makes extradition unjust or oppressive, the court assesses the justice of returning the person to face proceedings, rather than determining finally whether the trial will be fair. The effect of lost evidence is ordinarily for the trial court, unless the person demonstrates that a cogent item of lost evidence would have provided a defence.

The claimant appealed under section 103 of the Extradition Act 2003 against a District Judge’s decision to send to the Secretary of State Australia’s request for his extradition. The request concerned allegations of sexual abuse said to have occurred in Western Australia between 1983 and 1987.

The Secretary of State ordered extradition. On appeal, the claimant initially challenged technical aspects of the request, but withdrew those grounds after further evidence was supplied. He then argued that one allegation was inadequately supported and that the passage of time made extradition unfair or oppressive.

1. New ground concerning the request. The appeal was dismissed. Australia was a designated Category 2 territory, so under section 84(7) of the Extradition Act 2003 it was not required to provide evidence sufficient to establish a prima facie case. Under sections 78(4) and 137, it had to describe the alleged conduct so that the court could determine whether it amounted to an extradition offence and was punishable to the required extent in Australia. The description fairly reflected the complainant’s account and described conduct capable of constituting such an offence. Other evidence which did not fully support that account did not undermine the request.
2. Passage of time. The relevant question was whether, by reason of delay, it would be unjust or oppressive to return the claimant to Australia to face trial. It was not for the extradition court to make a fine assessment of whether the eventual trial would be fair. That issue could be considered by the trial judge, including through the Australian jurisdiction to stay proceedings where delay made a fair trial impossible.
3. The claimant established no culpable delay by the complainant or the Australian authorities. The total delay was long, but the additional delay attributable to the extradition process was comparatively slight. The evidence allegedly lost was peripheral and did not identify a cogent item which, if available, would have provided a defence. Its effect was therefore a matter for the trial court.
4. The court rejected the argument that extradition would be oppressive. The appeal was dismissed.

1. High Court (Administrative Court) — Appeal dismissed.
2. Bow Street Magistrates’ Court — The District Judge ordered the case papers to be sent to the Secretary of State under section 87(3) of the Extradition Act 2003.
3. Secretary of State — An order for extradition to Australia was made.