Australia sought extradition for charges arising from alleged assault of man in Perth
The New Zealand Supreme Court’s majority has deemed a man ineligible for surrender under s 45(4) of the Extradition Act 1999, given the application of the discretionary restriction on surrender under s 8(1)(c) of the Extradition Act.
In BW v Commonwealth of Australia [2026] NZSC 81, the appellant was accused of assaulting and causing grievous bodily harm to a man in Perth, Australia, in 2014. The Commonwealth of Australia requested his extradition to face criminal charges concerning the alleged assault.
On 4 April 2023, the District Court issued a surrender order under s 47 of the Extradition Act upon finding the appellant eligible for surrender. On 19 June 2023, the High Court quashed the surrender order.
On 12 February 2025, the Court of Appeal allowed the appeal, overturned the High Court ruling, and referred the case to the justice minister under s 48 of the Extradition Act.
On 16 June 2025, the Supreme Court of New Zealand granted the appellant leave to appeal on the question of whether the Court of Appeal correctly allowed the appeal and determined that the High Court erred in law.
The Supreme Court allowed the appeal, revoked the reference to the justice minister under s 48 of the Extradition Act, and reinstated the High Court’s quashing of the surrender order.
The Supreme Court prohibited the publication of the appellant’s name, address, and identifying particulars until a further District Court order.
The Supreme Court noted that part 4 of the Extradition Act set out a simplified extradition process from New Zealand to Australia and any other designated country. Regarding s 8(1)(c) of the Extradition Act, the Supreme Court identified three gateway considerations:
The Supreme Court noted that the terms “unjust or oppressive” involved a high threshold. In deciding whether a case met this high threshold, the court should consider certain circumstances, including comity and other specific and relevant aspects of the public interest.
The majority rejected the appellant’s argument that the court should never separately consider comity, which the part 4 test already included. The majority agreed with the High Court’s assessment that the District Court analysis had two errors of principle:
The majority ruled that the Court of Appeal erred in:
Upon addressing the appellant’s specific circumstances, the majority found that extraditing the appellant would be oppressive in the circumstances, including the long and inexcusable delay.
First, the majority acknowledged the unprovoked and serious offending in this case. The majority noted that the victim could have sustained permanent damage without surgery.
Second, the majority recognised that the appellant was a young person in his early 20s at the time of the incident, but had since “grown up” during the period of delay.
Third, the majority gave some weight to the appellant’s potential difficulties in defending the charge because of the delay.
Fourth, the majority saw strong evidence that the appellant returned to his papakāinga and reconnected with his whānau, hapū, and iwi in the interval of delay.
Fifth, the majority noted that the appellant and his partner decided to have a child and made other substantial changes to their lives during the period of delay on the assumption that they could keep residing together.
Justice Ellen France recognised that the Supreme Court had sufficient information to find a surrender oppressive and to determine that the appellant’s circumstances rose to the threshold.
Justice Miller expressed reservations about the majority’s finding that the court considering oppression could weigh the nature of the case, which turned on a visual identification, and the appellant’s possible difficulties in mounting a defence after the delay.
