Scott v The Government of the Commonwealth of Australia

On an extradition appeal, the question is whether the district judge’s decision was wrong, not whether the appellate court would have weighed the evidence differently. Under section 82 of the Extradition Act 2003, injustice concerns the possibility that the passage of time has made a fair trial impossible. Oppression concerns hardship caused by changed circumstances, assessed cumulatively. There is no fixed period after which extradition is automatically barred. Relevant factors include the length and culpability of delay, its effects, the seriousness of the alleged offence, prejudice to the defence, the requested person’s health, and any legitimate sense of security. Culpable delay by the requesting state may be decisive in a borderline case. The appeal was dismissed because the district judge’s conclusion that extradition was not unjust or oppressive was reasonably open to her.

Australia sought the extradition of an 88-year-old man to face trial for alleged sexual offences against his stepdaughter between 1972 and 1978. The allegations were first reported in 2000, the investigation was revived in 2013, and an arrest warrant was issued in 2017. The Senior District Judge found culpable delay by the Australian authorities between 2000 and 2013, but concluded that a fair trial remained possible and that extradition would not be oppressive or unjust under sections 82 or 91 of the Extradition Act 2003.

The appeal concerned whether those conclusions were wrong, having regard to the overall delay, the appellant’s age and health, and the safeguards available in Australia.

1. Appeal test. The statutory appeal was not a rehearing. The court had to decide whether, on the facts found by the Senior District Judge, her decision was wrong. The appellate court could stand back and conclude that the overall evaluation was wrong, but it had to respect findings based on live evidence.
2. Section 91. The appellant’s physical and mental condition, considered alone and without the passage of time, was not such that extradition would be unjust or oppressive. He remained fit to plead, stand trial and travel, although only with limited margin for deterioration.
3. Section 82: injustice. Injustice concerns the risk of an unfair trial. The essential question was whether a fair trial had become impossible. The court had to consider the safeguards and abuse-of-process procedures available in the requesting state. There was no fixed cut-off period. Australia’s courts were not bound to conclude that a fair trial was impossible: witnesses remained available, the appellant was not presently unfit, and Australian courts could address fitness and trial-management issues.
4. Section 82: oppression. Oppression concerns hardship resulting from changed circumstances during the delay. Hardship alone is insufficient. The court considered the very long delay, nearly 20 years of culpable delay, the appellant’s advanced age and health, the absence of demonstrated prejudice to his defence, the absence of evidence that he had been lulled into a false sense of security, and the seriousness of the alleged offences. Culpable delay by the requesting state could tip the balance in a borderline case, but it did not do so here.
5. The possibility of a non-custodial sentence did not make extradition oppressive. The allegations concerned serious sexual offences against a young child, and the public interest in the complainant having her case tried and in extradition requests being honoured remained substantial.
6. The appeal was dismissed. The court also declined to anonymise the appellant. Whether the test was exceptional circumstances or a very good case, it was not met.

• High Court (Administrative Court): The Divisional Court dismissed the appeal from the Senior District Judge’s decision ordering the case to be sent to the Secretary of State, holding that extradition was not barred under sections 82 or 91 of the Extradition Act 2003.