A man who claimed he came to New Zealand not to avoid a criminal trial, but to “escape living in constant fear” of his partner’s family, will be sent back to Australia.

Joseph John Riwhi opposed extradition to Australia, where he’s charged with causing grievous bodily harm to his partner’s father.

Extradition request documents released to NZME alleged Riwhi attacked the man in the Mt Isa Base Hospital’s accident and emergency department waiting room in Mornington on March 4, 2017, breaking his jaw.

He was charged and remanded on bail to appear at the Mt Isa District Court on February 15, 2018, but failed to turn up.

He and his partner instead came to New Zealand where they “built a new life in Aotearoa with their three young children”, Riwhi’s lawyer Alessia Spense said in written submissions in the Tauranga District Court.

Spense said when considering extradition, the court should consider the overall circumstances, including the amount of time that had passed, the domestic background to the offending itself, and a degree of “triviality” in terms of the alleged offending.

“The nature of the offence itself is certainly far from trivial,” Spense said.

“However, there may be a degree of triviality when the offence is viewed in the context of the family harm occurring at the time – and given the complainant has now passed. This ground is touched on only lightly, as the triviality is minor.”

However, Judge Deidre Orchard did not accept that submission.

“The offence itself is certainly far from trivial, and that context cannot rob it of its seriousness,” she said.

The judge said Riwhi had acknowledged, in an affidavit, that he punched his father-in-law, although he denied there was more than one blow, and “at least implies that he acted in self-defence”.

“In those circumstances, it cannot be argued that at least in prima facie, the accusation was not made in good faith, and whatever animosity there is between the two sides, I cannot accept it is not in the interests of justice that the defendant should be tried,” Judge Orchard said.

Spense also said Riwhi had built a life and become more connected with te ao Māori.

Spense said the passage of time had led to a change in circumstances that may “now render his surrender unjust and oppressive”.

While Riwhi had chosen to leave Australia, despite knowing he faced charges and was on bail, Spense said this was not motivated by the avoidance of trial.

“It was motivated by the perceived need to protect his family. His conduct following his arrival in New Zealand confirms that. He has not been living as a ‘fugitive from justice’.”

Spense also raised issues about the trial itself – particularly given the complainant was now deceased and could not be cross-examined.

However, Judge Orchard said injustice was only present if a fair trial was not possible nor likely in the requesting state.

It was not for the New Zealand court to consider the detail about how the specific trial would be conducted in terms of witnesses called and evidence given.

Grounds for injustice would only be found if the extraditing state didn’t have a similar approach to New Zealand’s standards of criminal evidence and procedure.

The judge found this was not applicable to an extradition to Australia.

The only grounds available for opposition, Judge Orchard said, were that the passage of time had led to circumstances of oppression.

In this instance, there had been delays, despite the extradition process beginning promptly after Riwhi left Australia.

But they had been circumstances outside of the control of the police both in Australia and New Zealand, and had included the border closure during the Covid-19 pandemic.

Judge Orchard considered case law that said that where the delay was principally brought about by the accused himself, by fleeing the country, concealing his whereabouts, or evading arrest, there weren’t grounds for the delays to be considered unjust or oppressive.

Judge Orchard said she couldn’t accept the consequences to him of extradition could “fairly be described as oppressive”.

“They are the sort of consequences that any family man or woman extradited from their home country would suffer. Furthermore, I do not find that there is a sufficient nexus between those consequences and the passage of time ...”

Riwhi was remanded in custody ahead of his extradition.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.