Brown v Territory of Pitcairn, Henderson, Ducie and Oeno Islands HC Auckland CRI 2005-404-000249

[2005] NZHC 1212

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-000249

LESTER KAY BROWN, RONALD JAMES DARIN CHRISTIAN AND BRIAN MICHAEL JOHN YOUNG

Appellants

v

TERRITORY OF PITCAIRN, HENDERSON, DUCIE & OENO ISLANDS

Respondents

Hearing:         12 October 2005

Appearances: P Dacre for RJD Christian

GM Illingworth QC for LK Brown and BMJ Young
F Wood for Respondents

Judgment:      18 October 2005

JUDGMENT OF ASHER J

In accordance with R540(4) I direct that the Registrar endorse

this judgment with the delivery time of                   on 18 October 2005

Solicitors:

Davys Burton, Crown Solicitors, PO Box 248, Rotorua

P J McDonald, PO Box 1495, Auckland

Copy to:

G M Illingworth QC, PO Box 7205, Auckland

P E Dacre, PO Box 47963 Ponsonby, Auckland

BROWN & ORS V TERRITORY OF PITCAIRN, HENDERSON, DUCIE & OENO ISLANDS HC AK CRI

2005-404-000249  18 October 2005

[1]      Ronald James Darren Christian and Brian Michael John Young seek an adjournment of a case stated appeal relating to surrender orders granted on an extradition application.

Background

[2]      In  July 2004  The  Respondents  applied  for  surrender  orders  under  the Extradition Act 1999 in respect of a warrant issued by the Magistrates’ Court of Pitcairn Islands for the arrest of Messrs Young and Christian, and also a Lester Brown (who has since been discharged).

[3]      The Appellants were all alleged to have committed acts of indecency and sexual violations between 1975 and 1990 on Pitcairn Islands.   The Appellants are both Pitcairn Islanders who now reside in New Zealand.

[4]      The application was made for the purpose of putting the Appellants on trial within the jurisdiction of the Pitcairn Courts in New Zealand under the Pitcairn Trials Act 2002.   On 6 July 2004 a Magistrate of the Pitcairn Magistrates’ Court issued a warrant for the arrest of the Appellants.  On 22 July 2004 the arrest warrants were endorsed by Bouchier DCJ of the New Zealand District Court.  The Appellants were subsequently arrested and bailed to await the decision of the District Court in relation to the extradition application.

[5]      The application was heard on 20 August 2004 and the judgment was given on that  day.    An  application  for  a  rehearing  was  brought,  and  heard  on  12  and

16 November 2004.  In a decision dated 26 May 2005 the application for a rehearing was declined.  On 20 June 2005 the case stated was filed.  This was set down for a telephone conference on 22 August 2005.  A memorandum had been received from the Appellants seeking an adjournment.   That application for an adjournment was opposed.

[6]      At the conference Cooper J formed the view that the issues were reasonably complicated and could not be properly addressed at the conference.  He directed the

matter to be set down for a half-day fixture.   The purpose of the fixture was to ascertain whether the appeal should be listed for a substantive hearing, or whether it should be adjourned.

The issue as to the adjournment

[7]      Messrs Young and Christian seek an adjournment because they submit one of the fundamental issues raised in the case stated, namely whether the “extradition offences” are indeed offences at all in the Pitcairn Islands, will be determined by the Privy Council next year.  The question for me is whether the fact that this issue will be determined by the Privy Council warrants the determination of the case stated being delayed until that decision is available.

The factual and legal framework

[8]      Section 45(2) of the Extradition Act 1999 provides that a person is only eligible for surrender under extradition proceedings if the Court is satisfied that a person is an extraditable person in relation to the extradition country, and the offence is an extradition offence in relation to the extradition country.

[9]      In  the  affidavits  that  were  filed  in  support  of  the  original  extradition application, the relevant statutory provisions creating the alleged offences were put before the District Court.  It was stated that the English criminal statutes applied to the Pitcairn Islands, and reference was made to the provisions of the relevant English legislation creating various sexual offences.  These English sexual offences were the extradition offences to which the application at the District Court referred.

[10]     The Pitcairn Order 1970 was part of the material provided to the Court. Section 5(3) and (4) of the Order read as follows:

(3)All laws made by the Governor in exercise of the powers conferred by this Order shall be published in such manner and at such place or places in the Islands as the Governor may from time to time direct.

(4)Every such law shall come into operation on the date on which it is published in accordance with the provisions of subsection (3) of this section unless it is provided, either in such law or in some other

enactment, that it shall come into operation on some other date in which case it shall come into operation on that date.

[11]     The Appellants assert, and it does not appear to be in dispute, that there was no evidence of any publication in the Islands of any of the extradition offences.  This issue is expressed in the case stated on appeal as follows:

In the absence [of] any evidence of publication in the Pitcairn Islands of the English statutory provisions relied upon by the applicant, was the Court correct to conclude that the offences of which the appellants were accused were extradition offences within the meaning of the Extradition act 1999?

This was one of the three questions of law raised in the case stated.

[12]     This was a point that was not in fact specifically considered in the District Court.  It is a point that has occurred to counsel since that hearing, and it formed the basis for the unsuccessful application for a rehearing.

[13]     Mr Illingworth advises that the Appellants will also be filing judicial review proceedings,  so  that  advantage  can  be  taken  of  the  broader  ambit  of  those proceedings to challenge the extradition hearing.  They will be heard with the case stated.

[14]     The extradition proceedings are proceedings in the New Zealand Courts.  The New  Zealand  Courts  have  no  jurisdiction  over  the  actual  criminal  proceedings against Pitcairn Islands Defendants.  There have already been a number of Pitcairn Islands Defendants tried and convicted by Pitcairn Islands Courts.  There have been appeals from the processes of those Pitcairn Islands Courts that have gone to the Pitcairn Islands Court of Appeal, and which are now awaiting hearing in the Privy Council.  Among the issues to be determined in those Privy Council appeals is the issue raised in the case stated of whether the English sexual offence provisions in fact create offences in the Pitcairn Islands, because of the lack of publication.

[15]     The  Appellants  place  weight  on  a  decision  of  the  Privy  Council  of

28 October 2004 granting special leave for the appeals from the Pitcairn Islands to proceed.  The issues in respect of which leave was sought included the publication issue.  The Privy Council stated at para [7] of its decisions:

The preliminary issues, which have been raised by the petitioners, are complex and difficult.   They raise fundamental questions about the way justice is administered in the Island of Pitcairn.  It is plain that they are of great importance to the inhabitants of the Island in general and to the petitioners in particular. Mr Raftery for the Respondents very properly did not dispute this point.

[16]     The Privy Council also noted at paras [11] and [12]:

[11]      There is one further point that supports the view that the proceedings should  not be  stayed.    In  their  petition  for  special  leave  the petitioners maintain that the offences with which they had been charged were never properly promulgated in the  Pitcairn  Islands,  and  that  the  machinery  of justice that is being used to prosecute them was set up only after the decision was taken to prosecute.  Neither the Supreme Court nor the Court of Appeal has  yet  ruled  on  these  issues  (“the  promulgation  and  late  constitution issues”), which raise questions of fact on which no findings have yet been made.  Their Lordships were informed that it was proposed to argue these points in the Supreme Court when the closing speech in the last trial has been completed and before it proceeds to deliver its verdict.  Their Lordships considered that the better course would be to allow these arguments to be presented to that Court, where evidence can be led and findings of fact made in the light of that evidence.

[12]      It should be understood that, in granting special leave and refusing a stay, their Lordships had proceeded on the basis that any findings of fact made by the Supreme Court on the promulgation and late constitution issues will be taken into account when the Board the appeals.

[17]     I understand that the publication issue was not initially raised in the Pitcairn Islands proceedings.  That is why the Privy Council decided to wait for the relevant determinations in the Supreme Court of the Pitcairn Islands.  The issue has now been raised in the Pitcairn Islands Supreme Court and rejected.  There is now a debate as to whether the issue needs to be considered by the Pitcairn Islands Court of Appeal, before it is heard by the Privy Council.  In any event, the issue will come before the Privy Council, and counsel estimate that that hearing is likely to take place in the middle of next year.

[18]     I should record that throughout the adjournment application counsel for the Respondents indicated concern that time estimates tended to prove optimistic, and that there was a risk of delays beyond the mid-2006 point.

Submissions

[19]     Mr Illingworth  submitted  that  to  proceed  with  the  case  stated  the  New Zealand High Court would have to make a determination of a complex and difficult point of foreign law.  He observed that while the lengthy delays were undesirable, delays were not of the usual significance in the case of the Pitcairn Islands offences, as they related back, in any event, to events that allegedly occurred between 1975 and 1986.   He asserted  generally that the  authorities have not acted with  great alacrity to date.  The Defendants no longer reside in the Pitcairn Islands, and live in New Zealand.

[20]     Mr Dacre made similar submissions.  He emphasised that the Pitcairn Islands sexual offences investigation was called “Operation Unique”.  He said that there was very extensive evidence now  on  the  publication  issue.    This  would  have  to  be considered by this Court in considering the case stated, which would take a great deal  of  time.     Mr Dacre  noted  that  there  is  to  be  a  directions  hearing  on Monday 31 October 2005 and it is likely that timetable orders will be made, and a better indication be given as to when the hearing will take place.

[21]     Mr Wood, for the Respondents, emphasised that while relating to foreign law, the issue essentially was one of the jurisdiction of a New Zealand Court to make an extradition order under our relevant legislation.   He submitted that extradition proceedings involve essentially an administrative function, and that the Court should not carry out the exercise of examining overseas legislation.  He submitted that an extradition order was merely a step in an administrative procedure, and that it was not appropriate for a Court to look behind the assertions in the affidavits in support, that the offences were extradition offences.

[22]     Adopting this approach, he relied on the decision in the District Court where a submission that the extradition jurisdiction is essentially of a procedural nature was accepted.   The real force of this submission was that the matter that the Privy Council  was  going  to  consider  was  irrelevant  to  the  case  stated,  as  no  such substantive issue could arise in New Zealand extradition proceedings.  He suggested that it would be a very unfortunate precedent if extradition proceedings could be

delayed on the basis that some relevant point of law was under consideration in the foreign jurisdiction.

Discussion

[23]     I am reluctant to consider in a detailed manner the substantive issues raised in the case stated for obvious reasons.  This is only an adjournment application, and the substantive issues on the case stated must be left for the Court that considers it. However, the Crown has submitted that the publication point cannot arise on a case stated, because the extradition jurisdiction does not extend to such matters raising as they do the validity of the laws of another state, and at least some examination is required of that point.  If I were convinced by Mr Wood’s argument, and could see no possibility of the publication issue being relevant and determinative of the case stated, I would not grant the adjournment.

[24]     Without in any way prejudging that submission, I am not convinced that the issue is as simple as that put by the Respondents.  Pursuant to s 45(2)(b)(ii) of the Extradition Act 1999, a person is eligible for surrender only if the person is an extraditable person and:

The offence is an extradition offence in relation to the extradition country.

[25]     The meaning of an extradition offence is defined in s 4(1)(a) as:

… an offence punishable under the law of the extradition country for which the maximum penalty is imprisonment for not less than 12 months for any more severe penalty and which satisfies the conditions in subsection (2).

[26]     There is certainly an argument that it is necessary for the New Zealand Court to be satisfied that the offence alleged against the extraditable person is in fact an offence in the extradition country.   Only a proven extradition offence in the extradition country can invoke the extradition jurisdiction.  If the New Zealand Court is not satisfied that an extradition offence exists, no surrender order will be made.  It is  the  Appellants’  argument  that  none  of  the  relevant  offences  are  extradition offences in Pitcairn Islands.  They are not offences at all, because they have not been published in the Islands.   It is submitted that the offences that the Defendants are

alleged to have committed, even though they may be offences in England or in New

Zealand, are not offences in the extradition country.

[27]     The publication point was not raised in the District Court.   It is, however, raised on the case stated, and it is not suggested that the failure to raise the point at the District Court level precludes it from being raised on appeal.  In my view, there is clearly a serious question of whether the District Court should order surrender, if it is not satisfied that the offence claimed to be the extradition offence is in fact an offence in the extradition country.  It arises on the papers filed by the Respondents. Thus, I do not accept the argument for the Respondents that for the purposes of this adjournment application I should assume that the District Court’s function was only of a procedural nature.   It may well be decided in the case stated hearing that the Court must be satisfied, on the papers before it, that the offences alleged are extradition offences.

[28]     The Respondents have relied on Republic of Argentina v Mellino (1988) 40

DLR (4th) 74.  In that case it was stated that it should be assumed in an extradition hearing that the requesting State will give the fugitive a fair trial according to its laws, and no weight shall be given to suggestions that proceedings are oppressive. Reference was also made to Weist v Director of Public Prosecutions (1988) 81 ALR

129, followed in New Zealand in Flickinger v Hong Kong [1990] 3 NZLR 372, where it was emphasised that an extradition decision does not determine rights or liabilities.

[29]   I do not find these authorities particularly helpful in considering this adjournment application.   Mr Illingworth raises no quarrel with the principles put forward.  The Appellants’ case goes much further than arguing oppression or other fine points.  The assertion is that the extraditable persons have committed no offence at all, and that this is clear from the papers.   Such an assertion, if valid, will undoubtedly give an extradition Court reason to pause.   It is a more fundamental issue than those raised in the cases referred to, and one which may lead to those cases being distinguished.

[30]     That there is a serious question to be tried is also indicated by the fact that the ultimate Pitcairn Islands Court, the Privy Council, has been prepared to grant leave to have the publication issue heard.

[31]     Thus, there is a serious point to be tried on the case stated or pending judicial review proceedings as to whether:

a)       a  New  Zealand  Court  should  make  a  surrender  order  if  it  is  not satisfied that the offence or offences which are the basis for the extradition application are indeed offences in the extradition country; and

b)the alleged offences are not offences at all in the Pitcairn Islands because they were not published there.

[32]     It seems to me unlikely that a New Zealand Court would order extradition if it was not satisfied that the offences alleged were valid offences in the extradition country.   It is not clear that the offences need to be individually published in the Pitcairn Islands, but the point is undoubtedly arguable.  It does not involve the Court going behind the papers before it; the point arises on the Respondents’ affidavit material.

[33]     I consider it likely therefore that a point of foreign law, namely what sexual offences, if any, are part of Pitcairn Islands law, will arise in the case stated hearing. I am satisfied that that same point is going to be determined by the Privy Council as the final Pitcairn Islands Court, probably at some time next year.

[34]     The principle of comity between common law jurisdictions is relevant.  It is preferable that the determination of points of law of foreign countries, is carried out by the Court processes of those foreign countries.  In New Zealand, foreign law has to be proven by evidence as a matter of fact.  This is a cumbersome way of deciding a point of law.  It is expensive and time consuming.  It is also undesirable for a New Zealand Court to endeavour to decide an important and undetermined aspect of the law of a foreign nation.  Such points are best left to the Courts of that other nation.

Thus, there are policy reasons which indicate that it is preferable for issues such as the publication issue raised, be considered by the extradition country.

[35]     If extradition orders were refused in the case stated on the basis of non- publication, and the Privy Council later rejected the non-publication argument and held that the English offences were offences in the Pitcairn Islands, the unfortunate situation would have arisen that the New Zealand Courts had misinterpreted the Pitcairn  Islands  legislation  and  reached  a  wrong  conclusion  refusing  extradition which might not then be able to be remedied.  Alternatively, if it was ruled in the case stated that despite the non-publication of the specific offences, they were offences in the Pitcairn Islands, and the Privy Council later reached the opposite conclusion, then the surrender of New Zealand residents would have been ordered on an incorrect basis and again in circumstances, where in theory at least, no reversal or challenge to the New Zealand decision might be possible.   Both scenarios run contrary to the principle of comity.

[36]     Of course, the same comity between nations requires that all efforts be made to  ensure  that  extradition  processes  are  not  delayed  without  reason.    It  is  the Territory of Pitcairn that opposes this adjournment.   Nevertheless, I am persuaded that there is good reason for delay, so that this question of the validity of the relevant extradition offences can be determined by the Privy Council.

[37]     It is relevant that the Pitcairn Islands Supreme Court has apparently granted a stay of the sentences imposed on the Pitcairn Islands Defendants who have already had their trials determined, to await the outcome of the Privy Council decision.  If the Pitcairn Islands Supreme Court has accepted delay because of the pending Privy Council decision, that is a good reason why this Court also should accept delay.

[38]     I am cautious about granting any adjournment.   The point made for the Appellants, that there is a prospect of very lengthy delay, is a matter of concern.  The time periods  will  become clearer  after  the direction  conference when  the  Privy Council takes place, and directions orders are made.  At that stage the position can be  reviewed,  and  the  Appellants  can  renew  their  request  for  a  hearing  if  they consider it appropriate to do so.  I should indicate, however, that it is my view that if

a hearing is allocated for the appeal to the Privy Council in the next 12 months, it would be appropriate to continue the adjournment until that Privy Council appeal is determined.

Conclusion

[39]     The application for an adjournment is granted, and that adjournment is to be reviewed at a conference to be held on Tuesday 8 November at 9:00 am.

……………………………..

Asher J