Bujak v District Court at Christchurch and the Republic of Poland

[2009] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA678/2008
[2009] NZCA 257

BETWEENSLAWOMIR RYSZARD BUJAK

Appellant

ANDTHE DISTRICT COURT AT CHRISTCHURCH

First Respondent

ANDTHE REPUBLIC OF POLAND

Second Respondent

Hearing:17 March 2009

Court:Glazebrook, Hammond and Robertson JJ

Counsel:F C Deliu for Appellant

C J Lange for Second Respondent

Judgment:19 June 2009 at 4.30 pm

JUDGMENT OF THE COURT

A        The application to adduce fresh evidence is declined.

B        The appeal is dismissed.

CIf costs are sought by the second respondent, submissions to that end must be filed within 14 days of this judgment.  Mr Bujak will have 14 days to file submissions in reply.  This panel will then deal with that issue, on the papers.  If submissions are not filed, there will be no costs orders.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]       Mr Bujak is a Polish national, presently resident in New Zealand.  The Polish authorities have brought numerous charges against him alleging the misappropriation of funds, vehicles and other property in that jurisdiction.  Pursuant to the Polish Code of Penal Procedure 1997, an order freezing the property of Mr Bujak was proposed by the prosecution and confirmed by a Regional Court in Poland.  Poland thereafter requested the Attorney-General of New Zealand to register the Polish order against Mr Bujak’s assets believed to be in New Zealand. 

[2]       The Attorney-General then instructed the Solicitor-General to take the necessary steps to register the Polish order as a foreign restraining order under s 2 of the Mutual Assistance in Criminal Matters Act 1992.

[3]       Mr Bujak has, at every possible turn thereafter, struggled to resist the registration of the Polish order and his extradition to Poland. 

[4]       The registration issue occupied the High Court on a number of occasions, this Court on two occasions, and was finally disposed of by the Supreme Court of New Zealand, which held that the Polish order was correctly registered in New Zealand: Bujak v Solicitor-General [2009] NZSC 42. That is an end of that issue.

[5]       The present appeal concerns the proceedings to extradite Mr Bujak.  The Republic of Poland seeks the extradition of Mr Bujak so that he can be tried on a number of fraud charges arising in the context of a failed transport business which he operated in Poland.  Poland began to make moves to have Mr Bujak extradited in 2000, but its formal request for his extradition was not made until March 2004.  Mr Bujak was brought before the District Court at Christchurch under s 24 of the Extradition Act 1999 (the Act) to determine his eligibility for surrender to Poland.  On 10 April 2008, Judge Erber confirmed an earlier decision that authorised Mr Bujak’s extradition to Poland on six fraud charges: DC CHCH CRI-2005-009-1703. 

[6]       On 21 April 2008 Mr Bujak filed an application for judicial review with respect to that order.  This proceeding alleged “material errors of law which rendered the decisions [of Judge Erber] invalid in law”.  Three issues were raised.  First, whether the relevant documents put before the New Zealand court were inadmissible because they were not “copies” within the meaning of Article 13 of the Treaty between New Zealand and the Republic of Poland.  Secondly, whether the Polish prosecutor’s certification that the evidence was “reliable and conforming with the original document” rather than “a true copy thereof” did not constitute appropriate authentication, thereby rendering the documentation inadmissible.  Thirdly, there were arguments about some allegedly hearsay evidence.  This challenge was therefore a process challenge, rather than a challenge to the “merits” of Mr Bujak’s extradition.  We do not, by this, intend to imply that the merits could be challenged by Mr Bujak.

[7]       That judicial review proceeding was heard in the High Court at Christchurch on 29 August 2008.  Simon France J dismissed the application: HC CHCH CIV 2008-409-785 8 October 2008.  It is that determination against which the present appeal is brought.

The application to adduce fresh evidence

[8]       The proceedings relating to Mr Bujak have continued to attract a number of procedural difficulties and applications.  A consequence of the application which had been made against Mr Bujak was that his assets were frozen.  The counsel who had represented Mr Bujak in the High Court could not continue to act due to the absence of funding.  Mr Orlov was then instructed.  He made a legal aid application immediately upon receiving instructions on 3 February 2009.

[9]       On 14 February 2009 an application was made on Mr Bujak’s behalf for an adjournment of the hearing of this appeal, because Mr Orlov had other hearing commitments.  Counsel for the second respondent, the Republic of Poland, opposed the adjournment.  On 24 February 2009 the presiding Judge on this panel, Glazebrook J, declined an adjournment, and subsequently Mr Deliu appeared before us.

[10]     It is convenient to note here that by this time the first respondent, the District Court at Christchurch, had advised through counsel that it would abide the decision of this Court.  So there is now effectively only one respondent, namely, the Republic of Poland.  When we refer hereafter to the respondent it is that party we are referring to.

[11]     To further complicate matters, on the very morning of the hearing before this panel, Mr Deliu lodged an inter partes application for leave to adduce fresh evidence.  The application was made on the footing that the new evidence is relevant to the proceedings and was recently obtained, and that it would be a miscarriage of justice not to have the fresh evidence admitted. 

[12]     An affidavit filed in support of the application annexes several pages of documents in Polish, with an English translation.  The purpose of the material appears to be to throw doubt on the testimony of one Henryk Zimny, who had been interviewed by the Polish Police in connection with the charges against Mr Bujak.  The central thrust of the affidavit amounts to assertions that Mr Zimny’s statement was not correctly recorded, and that he was coerced by the Polish Police into saying what, on paper, he has said on oath.

[13]     We decline the application to adduce this evidence.  It fails a central well- established test for the admission of such evidence.  Mr Zimny’s statement was given as long ago as 5 March 1999.  If it was to be said that the Polish document is irregular, or ought not to be accepted, then it has been open to Mr Bujak ever since that time to challenge it.  He could and should have challenged it much earlier in the New Zealand proceedings or, for that matter, the Polish proceedings.  It is extraordinary that the first formal challenge to the document has been made on the appeal to this Court.  It is true that in a very general sense Mr Bujak appears to have maintained throughout that these charges against him have resulted from a misunderstanding as to what actually occurred in Poland – indeed, he comes close to saying, if he does not actually say, that they are “trumped up” charges – but it has also to be borne in mind that the purpose of the actual extradition application was simply to extradite him to face those charges.  As we will shortly explain, this is not a merit disposition as such.  That will be a matter for the trial in Poland.

[14]       The evidence which it is now sought to adduce was – if proper enquiries had been made by Mr Bujak – patently available right from the outset of the extradition proceedings.  It would be wrong to allow a challenge to be presented at the last minute on appeal. 

[15]     Further, in any event, it is hard to see how the challenge could be effectively dealt with – if it were otherwise appropriate – save by remitting the proceedings to the District Court for the whole round of extradition evidence to be begun again, as it were.  Even if that were done, Mr Bujak faces very high obstacles.  Mr Zimny has sworn a statement.  Supposedly he is now retracting that statement.  He would be faced here (and presumably also at a Polish trial) with prior inconsistent statements (which under New Zealand law would now likely be admissible).  It is difficult to see how a New Zealand court could properly determine if the prior statement or the statement now allegedly made is accurate.  We are doubtful too that comity would allow this sort of challenge to the evidence anyway (subject perhaps to very exceptional circumstances).  For reasons we will come to shortly, the extradition should be looked at only on the papers provided; to do otherwise would be to question Poland’s legal process.  If the evidence is “trumped up” then we can fairly assume the Polish courts will deal with that issue.  By joining an extradition Treaty, New Zealand has accepted that the court system in the partner state is robust enough, unless perhaps very unusual issues arise (such as a death penalty).

[16]     The practical consequence of this holding is that the evidential basis on which we consider the appeal must be as the case stood in the District Court, and before the High Court.

Extradition: some general observations

[17]     Much of the argument in the lower courts, and again before us, was confused by abstract arguments about extradition involving Mr Bujak’s “liberty” and the consequences which are said to flow from that.  It is as well therefore to be clear from the outset as to the legal character of extradition proceedings.

[18]     Primarily, extradition is an act of the executive based on obligations undertaken between two or more states, by a Treaty.  An exercise of territorial sovereignty is involved, insofar as one state is asked to return an individual within its territory to another state to face criminal proceedings (or, in the case of convicted persons, to complete their sentence).

[19]     Each state must decide for itself whether and how the executive or the judiciary should address questions relating to extradition.  Very broadly, some matters are attended to by the state, and some by the judiciary.  The judicial role is important because the assessment of whether a person should be surrendered has a significant impact on that person’s “liberty interests”, as it  is sometimes termed.  To put this another way, the extradition process puts into opposition a person’s liberty interests and international co-operation or comity.  And this in a context in which most states have a mixed executive/judicial approach to the actual process of extradition.

[20]     Courts have had to face the difficulty of on the one hand recognising the significance of comity and acting in a way which properly respects the relevant Treaty with the requesting state, while at the same time applying the specific extradition law and general criminal law within their own jurisdiction in a manner consistent with the laws of that state.  The overall problem lies in endeavouring to attain an appropriate balance between comity and liberty. 

[21]     As a very general proposition, this is sought to be achieved in New Zealand, as in other common law systems, by treating an extradition hearing as being generally comparable to the sort of preliminary proceedings which are used domestically to hold an accused over for trial.  To put it another way, the extradition hearing has not been treated as a trial on the merits because that approach would involve questioning the foreign state’s judicial system.  For the historical evolution of this approach, see Jones and Doobay Extradition and Mutual Assistance (3ed 2005).

[22]     This has led to an approach whereby evidence admissible under the laws of the requested state can be submitted but that evidence has to be prima facie sufficient to both prove an offence, and prove that the person sought had “committed” it.  The requested state need only satisfy itself that under its own law in similar circumstances, the person sought to be extradited could be bound over to stand trial.  But the trial itself, including any defences, is to be left to the requesting state.  This elegant solution has been seen to strike an appropriate balance in that the liberty interest is protected because the person sought to be expedited should not be sent for trial unless the same sort of standard which applies to any other person in New Zealand is met.

[23]     As it transpires, in this particular instance the points which were taken in the High Court, and rejected, are relatively narrow.  But before we turn to those points it is worth firmly disposing of an argument which ran through Mr Deliu’s entire submissions.  The thrust of Mr Deliu’s argument was heavily freighted with the language of “justice and liberty”.  He emphasised time and time again that the material put in front of the New Zealand courts was in one way or another “unreliable” with respect to Mr Bujak’s possible criminal culpability.  But as we have outlined above, extradition law has had to evolve a more sophisticated approach to accommodate the interests of comity and liberty which our law, in common with that of many civilised countries, has seen to be at stake.  There is not an additional layer of rather diffuse justice protections which Mr Deliu seemed to suggest could be resorted to, other than the strict construction of legislation affecting liberty which New Zealand law already endorses.  In short, the critical issue is whether, on the face of the material provided, Mr Bujak could be bound over for trial in New Zealand.

The New Zealand legislation

[24]     Before dealing with the particular points at issue, it is convenient to set out the relevant New Zealand statutory provisions, and those of the relevant Treaty.

[25]     Section 24(2) of the Act provides that a person is eligible for surrender in relation to an extradition offence if:

(a)the supporting documents (as described in s 18(4)) in relation to the offence have been produced to the court; and

(b)       if –

(i)this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions, or qualifications that require the production to the court of any other documents; or

(ii)the terms of an extradition treaty in force between New Zealand and the extradition country require the production to the court of any other documents –

those documents have been produced to the court; and

(c)the court is satisfied that the offence is an extradition offence in relation to the extradition country; and

(d)the court is satisfied that the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act, -

(i)in the case of a person accused of an extradition offence, justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand; or

(ii)in the case of a person alleged to have been convicted of an extradition offence, prove that the person was so convicted.

[26]     Article 13 of the Treaty between New Zealand and the Republic of Poland provides:

In the examination which they have to make in accordance with the following stipulations, the authorities of the State applied to shall admit as valid evidence the sworn depositions or the affirmations of witnesses taken in the other State, or copies thereof, and likewise the warrants and sentences issued therein, or copies thereof, and certificates of, or judicial documents stating the fact of a conviction, provided the same are authenticated as follows:-

1.A warrant, or copy thereof, must purport to be signed by a Judge, Magistrate, or other officer of the other State, or purport to be certified under the hand of a Judge, Magistrate, or officer of the other State to be a true copy thereof, as the case may require.

2.Depositions or affirmations, or the copies thereof, must purport to be certified under the hand of a Judge, Magistrate, or officer of the other State, to be the original depositions or affirmations, or to be true copies thereof, as the case may require.

3.A certificate of, or judicial document stating the fact of a conviction must purport to be certified by a Judge, Magistrate, or officer of the other State.

In every case such warrant, deposition, affirmation, copy, certificate, or judicial document must be authenticated, either by the oath of some witness, or by being sealed with the official seal of the Minister of Justice, or some other Minister of the other State, or by a other mode of authentication for the time being permitted by the law of the State to which the application for extradition is made.

(Emphasis added).

The admissibility of copies

[27]     The narrow issue here is whether the documents put before the New Zealand court were inadmissible because they were not “copies” within the meaning of art 13.  As can be seen from the italicised portions of art 13 (see [26] above), “copies” of the relevant documents are required.  It was common ground in the High Court that originals of documents were not provided.  The Judge accurately described the documents provided as “a mixture of photocopy, and transcriptions as in someone having copy typed, or copy hand-written the content of the original.  Some may also just be ‘copies’ of documents in the sense of further copies printed by a printer” (at [9]).

[28]     The respondent says it has provided copies within the meaning of the Treaty provision.  For Mr Bujak the point taken in the High Court was that the Treaty provision was not complied with because, it was argued, the only permissible copy is a photocopy of the original.

[29]     It was in this context, both in the High Court and before us, that counsel sought to resort extensively to human rights material going back as far as the Magna Carta.  This was partly in support of the proposition that because extradition is a criminal proceeding in some sense and goes to the liberty of a person, the Treaty should be strictly construed.  It was further suggested that in judicial review proceedings in cases like this, a strict “hard look” standard of review should be employed.  But how this affects the correctness issue – whether the Court had properly understood the legislation and the Treaty – was not made apparent.

[30]     Several points need to be made here.  The first is that the lower courts had the orthodox task of interpreting the words of art 13, namely what a “copy” means for the purpose of that Treaty.  There is nothing inherently ambiguous in such a word, which is in everyday usage.  Why it should be interpreted as meaning a photocopy and nothing else was not made apparent to the High Court Judge, nor to us.

[31]     Secondly, it is no more apparent to us than it was to the High Court Judge why interpreting “copy” as only meaning “photocopy” would be “liberty advancing”.

[32]     Thirdly, when all is said and done, Mr Bujak’s real concern seems to be less that “copy” has only one meaning, but rather with the veracity and reliability of what is revealed by the copy.  This is exemplified by the fresh evidence application which was made to us.  Lengthy submissions were advanced as to alleged errors in translation, and like concerns.  If we follow Mr Deliu correctly, the provision of a “photocopy” would either affirm or set to one side any such concerns.  Although that may conceivably be so, the fact that one method of copying may be better than another is not a reason to misinterpret a word.

[33]     Fourthly, the argument for the appellant flies in the face of common sense.  In a modern day context, a “copy” can be made in numerous ways – for example, by handwriting, retyping, copying from a computer whether electronically or by printing multiple copies, making photographic images, and photocopying or scanning an original.  The real issue is not how the copy is made, but whether it is reliable.  Reliability is addressed under the statutory and Treaty provisions through the authentication process, which is the next issue on the appeal.

Authentication

[34]     The issue under this head is whether the Polish prosecutor had, inappropriately, not certified that the evidence was “a true copy thereof” but had rather certified it as “reliable and conforming with the original document.”  It is convenient first to describe the process actually adopted in this case.  What the High Court Judge described as “the general bundle” of documentation (at [26]) has a Certificate of Authentication issued by the Chargé D’Affaires at the Embassy of the Republic of Poland in New Zealand.  All the documents are listed.  The Chargé D’Affaires concludes, as does the prosecutor, by certifying that they are submitted in satisfaction of the Treaty requirements, and they are certified to be a true and correct copy of the Polish originals.

[35]     Dealing with the documents in more detail, the first group of documents is a copy of the documents in Polish. The next group is a set of the same documents translated into English, but with certification by the appropriate Polish translator.  The translator states that he is a sworn translator of the English language for the District Court of the City of Warsaw.  He further certifies that “the documents attached hereto, constitute a true and complete translation of the 79 pages of original Polish documents”.

[36]     The first substantive document is a description of the eight charges, giving considerably more detail than would be contained in, for example, an information in New Zealand.  It is signed by the relevant public prosecutor.  There is then the Provisional Warrant issued by a judge which also records the charges in detail.  Each charge is supported by a collection of documents separated by a cardboard insert.  These include the sworn evidence relating to each charge.  Those witness statements begin with an acknowledgement of the obligation to tell the truth and set out the provisions of the Polish Code of Penal Procedure under which they are taken.  The person who took the statement confirms his authority to do so and the steps which were taken to confirm the identity of the witness.  The deposition as such is signed by the authorised person who took it, and by the witness, and the whole deposition was certified by an appropriate official, namely the Polish District Prosecutor.

[37]     Section 24(2)(d) of the Act provides that a person is eligible for surrender in relation to an extradition offence for which surrender is sought if:

The court is satisfied that the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act –

(i)in the case of a person accused with an offence, justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand.

What was argued in the District Court and before Simon France J was that the documentation must conform with the New Zealand Summary Proceedings Act 1957.

[38]     Simon France J rejected that proposition out of hand.  So do we.  This is because there is no requirement in the Act that the documentation must meet the form requirements of the New Zealand criminal procedure legislation.   In other words, there is absolutely no expectation or requirement of commonality of process.  What is required is that the documentation conform with the Act and the relevant Treaty.  What the Court is looking to is whether the documentation as so produced establishes justification, in the eyes of New Zealand law, to send the suspect to trial.  The argument being advanced here as to why that should not happen is quintessentially a “merits” argument because the evidence actually adduced is said to be “unreliable”.  That assessment, however, is not the task of the New Zealand courts.

Hearsay evidence

[39]     The issues under this head, to the extent that they can be maintained at all, came about in a rather convoluted way.  Judge Erber had ruled that the scheme of the Act and the Treaty meant that once there was compliance with the procedural aspects of documentation, the documents were receivable and admissible as evidence without any further challenge.  As the law then stood, they could not be open to challenge as being inadmissible hearsay. 

[40]     On a case stated to the High Court, Panckhurst J had disagreed.  He directed the District Court to re-determine the sufficiency of the charges once any inadmissible hearsay was excluded.  That judgment was delivered before the Evidence Act 2006 came into force.

[41]     When the cause was returned to Judge Erber he noted that, amongst other things, Mr Rapley (the then counsel for Mr Bujak) had maintained that all of the documentation was hearsay.  As Judge Erber said (at [39]):

This criticism really relates to the form and method of presentation of the evidence tendered, not its sufficiency looked at charge by charge (but subject to the excision from considerations of inadmissible hearsay which may be recorded in the deposition).

[42]     The Judge went on to indicate – we think correctly – that Panckhurst J was not in his judgment referring to a claim of hearsay covering all of the documents but was instead referring to the content of the testimony recorded in the deposition or document.

[43]     On the judicial review application, Simon France J was concerned that counsel for Mr Bujak was vastly stretching the point of the reference back by Panckhurst J, which was no more than that any inadmissible hearsay evidence should be extracted on a particular charge.  In short, the point being taken was not one which was open to the appellant in the hearing before Simon France J.  Still less is it appropriate to advance it further before us.  It was never pleaded, and it was not a point which had ever been taken in the original hearing before Judge Erber.

[44]     The upshot of all of this is that Mr Bujak received a favourable decision on the case stated hearing before Panckhurst J.  That Judge’s ruling was in fact observed by the District Court.  But counsel has now sought to advance, first before Simon France J and then again before us, that somehow all of the documentation amounts to hearsay.  That is palpably not so.  Mr Deliu made little of this point in his oral submissions to us.  But they are contained in the Notice of Appeal, and the point was not withdrawn.  It is for that reason that we have dealt with the issue, and reject this appeal point.

The shifting sands of the points of appeal

[45]     From the outset, a marked feature of the litigation concerning Mr Bujak has been the difficulty – apparent again before us – in pinning down precisely what it is (other than that it is said that he did not commit the offences) that is being advanced on his behalf.  Each of the hearings appear to have been marked by shifts in grounds of appeal, or points being taken in the subsequent court that were never previously advanced, and often with a quite different complexion.  To some extent, this is almost inevitable with changes of counsel.  But it is apparent that the lower courts in New Zealand have, as a matter of fairness, leant over backwards to entertain arguments which could not strictly have been considered to have been squarely before the prior court, let alone the later court.  This has made for great difficulty in following the course which events have taken over several years.  But more importantly, in terms of principle, it has made for difficulty in identifying a coherent line of argument on behalf of Mr Bujak. 

[46]     At the end of the day this is because, however it is dressed up, Mr Bujak is endeavouring to resist extradition on the very basis that he would wish to resist the charges themselves.  He may eventually be able to do just that.  But that is for the Polish courts, in due course.  In our view, the necessary formalities and authentication under the law of New Zealand for extradition have been met. 

Conclusion

[47]     The appeal is dismissed.

[48]     If costs are sought by the second respondent, submissions to that end must be filed within 14 days of this judgment.  Mr Bujak will have 14 days to reply.  This panel will then deal with that issue, on the papers.  If submissions are not filed, there will be no costs orders.

Solicitors:
Cousins & Associates, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent