A convicted sex offender has failed in a bid to ward off extradition to New Zealand, with the Federal Court ruling it is up to that country’s court to decide whether he is fit for trial.
Sydney man David Peter Kisun, 77, was arrested in September under an extradition warrant, having been charged with child sex offences against two boys at a Marist Brothers school in Wellington between 1969 and 1971. A second warrant committed him to prison until his extradition. A review of the decision to issue an extradition warrant is pending.
Kisun applied to the Federal Court for an order that his custody arrangements be changed, and an order that he be granted bail, under ss 35(6)(g)(iii) and (iv) the Extradition Act 1988 (Cth), so he could attend medical examinations to gather evidence of his lack of fitness to stand trial.
In a decision handed down yesterday, Justice Perram ruled Kisun’s situation did not constitute “special circumstances” under the Act to justify the orders.
“Assuming in the Applicant’s favour that I made orders which permitted him to be examined by an expert and, further, that the expert then produced a report which said that he was not fit to stand trial, the question would be whether, on the review application, acceptance of this evidence could lead the Court to quash the magistrate’s decision to issue the surrender warrant,” he said.
“I do not think it could. If the Applicant is not fit to stand trial, I am unable to discern any reason why it would be unjust or oppressive or too severe a punishment to require him to make this point in New Zealand in the court before which he is eventually arraigned.”
Justice Perram said Australian courts held New Zealand courts in high regard and that proceedings would be conducted fairly.
He said even if the power in ss 35(6)(g)(iii) or (iv) could be used to facilitate a medical examination, he did not believe it would be worth using that power.
“At best, it would result in evidence showing that the Applicant was not fit to stand trial but this could not result in his warrant of surrender to New Zealand being quashed,” he said.
Justice Perram acknowledged Kisun was elderly and frail, and suffering from heart problems, diabetes and depression; and that prison health care was unlikely to meet his high care needs.
He also noted that as a child sex offender – Kisun was found guilty in 2018 of molesting boys at a Canberra school in the 1980s – the teacher faced an increased risk of violence from other prisoners.
He also noted the events that gave rise to the charges happened more than 50 years ago.
However, he said these matters together did not amount to special circumstances.
“He is in the kind of situation that a person facing historic child sex charges in New Zealand would expect to find himself in,” Justice Perram said.
“Whilst I accept that there is much in the Applicant’s circumstances which may fairly be described as unfortunate, I do not think that this makes them special.
“To the contrary, the Applicant’s unfortunate circumstances appear to me to be typical of a man in his situation.
“The normal rule in extradition cases is that the person remains in custody. The normal rule may be displaced when there is some unusual and extraordinary reason to depart from it …the normal rule is not displaced here.”
Justice Perram dismissed both applications, and said Kisun’s review application should be dealt with as soon as possible.