Bankside barristers Tiana Epati KC and Matanuku Mahuika, together with Max Harris of Thorndon Chambers, have acted for the successful appellant in a landmark Supreme Court decision issued on 23 June 2026, which declined extradition to Australia after finding that the combination of both the inexcusable delays by Australian authorities and profound changes to the appellant's personal circumstances rendered his surrender oppressive.
In BW v Commonwealth of Australia, a New Zealand man known as BW faced extradition to stand trial over an alleged assault in Western Australia in November 2014.
In February 2015, Mr BW was identified as the person responsible for the attack and an arrest warrant was issued in June 2015.
Following delays, the application to extradite him to Australia was approved by the Office of the Director of Public Prosecutions for Western Australia in February 2020.
Extraditions from New Zealand to Australia are conducted through a “backed warrant” procedure, under which a District Court judge must endorse the warrant for arrest as issued by the Commonwealth of Australia. The warrant was endorsed by the District Court in September 2022, almost eight years after the alleged offending.
Mr BW returned to New Zealand in 2020.
He told the courts he had returned to his home settlement near Gisborne to seek support from family while experiencing mental health difficulties and was unaware of the jeopardy he faced.
He was arrested in New Zealand in October 2022.
On 4 April 2023, the District Court found that Mr BW was eligible for surrender and had failed to establish a restriction on surrender under s 8(1)(c). On 19 June 2023, the High Court allowed Mr BW’s appeal from the District Court, concluding that it would be oppressive to order his extradition.
That decision was overturned on 12 February 2025, when the Court of Appeal allowed an appeal against the High Court’s ruling and determined that it would not be oppressive for Mr BW to be extradited.
During the intervening years, Mr BW stopped drinking alcohol, maintained employment, reconnected with his iwi, and became involved in community activities. He entered a long-term relationship with his current partner and became a father in September 2022.
In a majority decision released yesterday, the Supreme Court found that extraditing the man to Australia to face a charge would significantly disrupt his rehabilitation and family life. It held that his surrender would therefore be oppressive under the Extradition Act.
“This is a landmark decision and transforms the law on extradition in Aotearoa New Zealand,” says Tiana Epati KC.
The evidence of cultural reconnection in this case was central to the Court's assessment because Mr BW had found a partner, had a family and built a new life with his whānau, hapu and iwi.
“This case is significant because the Supreme Court accepted the submission that separate would disrupt the central place that whanaungatanga had come to play in the life of BW’s family, including his son,” says Matanuku Mahuika. “Disruption of cultural connection can give rise to oppression.”
The decision marks the first known instance of the Supreme Court refusing extradition to Australia on the basis that surrender would be oppressive under the Extradition Act.
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