Curtis v District Court at Manukau

[2018] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND

CA539/2017
[2018] NZCA 23

BETWEEN

JASON LEONARD CURTIS
Applicant

AND

DISTRICT COURT AT MANUKAU
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

Hearing:	19 February 2018
Court:	Winkelmann, Asher and Clifford JJ
Counsel:	D P Hoskin and C Liang for Applicant No appearance for First Respondent K E Hogan for Second Respondent
Judgment:	26 February 2018 at 3 pm

JUDGMENT OF THE COURT

The application for an extension of time is granted on the condition that Mr Curtis file amended grounds of appeal by 23 March 2018.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

1. Mr Curtis, now aged 22, resists his extradition to Australia for alleged sexual offending when he was 14 and 15 years old.  He argues that undue delay on the part of the prosecuting authority renders it unjust or oppressive to surrender him to Australia and that there are compelling or extraordinary circumstances such that he should not be extradited.

2. In this proceeding, Mr Curtis seeks an extension of time to appeal a judgment of Lang J dismissing Mr Curtis’ claims in judicial review proceedings which challenged a judgment of Judge Andrée Wiltons in the original extradition proceedings.[1]  Lang J found no reviewable error in the Judge’s refusal to refer the matter of Mr Curtis’ extradition to the Minister of Justice because of compelling or extraordinary circumstances of Mr Curtis under s 48(4)(a)(ii) of the Extradition Act 1999, nor in his refusal to order further disclosure by the Commonwealth of Australia. 

   [1]Curtis v Commonwealth of Australia [2017] NZHC 624; Commonwealth of Australia v Curtis [2016] NZDC 17157.

3. It is relevant background to this application for an extension of time that Mr Curtis has, in other proceedings brought under the Criminal Procedure Act 2011 (CPA), sought and been granted leave to appeal another aspect of the same judgment of Lang J.[2]  That appeal focuses upon the issue of whether ordering surrender of Mr Curtis would be unjust or oppressive for the purposes of ss 8(1)(c) and 48(4) of the Extradition Act.

   [2]Curtis v Commonwealth of Australia [2018] NZCA 22.

4. Leave of this Court in this proceeding would not have been required in respect of a timely judicial review appeal,[3] but Mr Curtis was just over four months late in filing this appeal.  He therefore requires an extension of time pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 to bring the appeal.  Mr Curtis’ explanation for that delay is the time taken by counsel to consider the merits of pursuing the appeal. 

   [3]Judicature Amendment Act 1972, s 11 and Judicature Act 1908, s 66. 

5. The Commonwealth of Australia does not oppose the application for an extension of time on the grounds of delay.  It does not claim it has been prejudiced by virtue of the delay since the appeal, if heard, would be heard at the same time as the CPA appeal.  Indeed, the application for leave to bring the CPA appeal was heard together with this application for an extension of time.  Ms Hogan, for the Commonwealth, puts the opposition on another basis — that the prospective merits of the judicial review appeal are so low that leave should not be granted.

6. In determining whether to extend time under r 29A, the ultimate question is what the interests of justice require.  Answering that question requires an assessment of the particular circumstances of the case but the factors likely to be relevant include:[4]

   (a)the length of the delay;

   (b)the reasons for the delay;

   (c)the conduct of the parties, particularly of the applicant;

   (d)any prejudice to the respondent caused by the delay; and

   (e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.

   [4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].

7. While the merits of the proposed appeal may in principle be relevant to the exercise of a discretion to extend time, leave will not be declined on that basis alone unless the appeal is clearly hopeless.[5]

   [5]At [39].

8. We accept that the current pleading of the proposed appeal is inadequate.  It is discursive, raising many matters which are not available grounds of judicial review such as a claim the Judge gave insufficient or disproportionate weight to evidence.  We also accept Ms Hogan’s submission that the proposed challenge to the refusal of disclosure appears to have little prospect of success.  However, during the argument for this application it emerged that a critical issue Mr Curtis wishes to pursue on this appeal is an argument of error of law, arising by reason of a failure to address Mr Curtis’ claim that the totality of his circumstances constituted compelling or extraordinary circumstances for the purposes of s 48(4).  The circumstances relied upon are:

   (a)Mr Curtis was taken from New Zealand by his father when he was 15 and at that point in time Mr Curtis believed that he would not be charged;

   (b)the prosecuting authorities in Australia took no steps to bring to his attention that he would be charged if he did not return, or, for many years, that steps were being taken to extradite him;

   (c)the delay in the bringing of extradition proceedings is attributable to the prosecuting authority;

   (d)the steps Mr Curtis has taken in the intervening years to build a life for himself in New Zealand;

   (e)his mental health and lack of family network in Australia; and

   (f)his circumstances, in light of all of these matters, were his surrender to be ordered.

9. Although Mr Curtis will need to re-plead his judicial review, expressing it in narrower and more conventional terms, we are not satisfied at this very preliminary stage that it is without merit.  We also weigh that Lang J points to uncertainty as to the proper interpretation of s 48(4).  This appeal may usefully address and clarify that issue of interpretation. 

10. We also take into account that hearing this appeal will add little to the length of the hearing required for the CPA appeal or to the burden of preparation.  Nor will it delay the extradition proceedings.  It will, however, ensure that the issues that arise from the judgment of Lang J can be properly argued and addressed on appeal.[6]

Result

[6]It is not clear to us why the challenge to the Judge’s approach to s 48(4) was not pursued in the Criminal Procedure Act 2011 appeal.

1. Accordingly, the application for an extension of time is granted on the condition that Mr Curtis file amended grounds of appeal by 23 March 2018.

Solicitors:
Steindle Williams, Auckland for Applicant
Crown Solicitor, Manukau for Second Respondent