Dalma Sylvester Edwards v United States of America

[2002] NZCA 203

IN THE COURT OF APPEAL OF NEW ZEALAND CA6/02

BETWEEN	DALMA SYLVESTER EDWARDS
Appellant

AND	UNITED STATES OF AMERICA
Respondent

Hearing:

19 August 2002

Coram:

Blanchard J
Tipping J
Glazebrook J

Appearances:

C L Amery for Appellant
H M Aikman and M A Soper for Respondent

Judgment:

Reasons for Judgment

19 August 2002

22 August 2002

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. On 19 August the Court dismissed all of the appellant’s applications and indicated that it would shortly give its reasons, which we now do.

2. The District Court at Auckland determined that Mr Edwards was eligible for surrender upon an extradition request made by the United States of America.  The District Court Judge issued a warrant for his detention in accordance with s26 of the Extradition Act 1999.  Instead of appealing against the determination of eligibility for surrender by the case stated procedure available under s68 of that Act, Mr Edwards sought judicial review which was declined in the High Court.  An appeal followed to this Court which, in a judgment delivered on 15 July 2002 (Edwards v United States of America CA6/02) concluded that there was no reviewable error of law made by the District Court and dismissed the appeal.

3. Mr Edwards has subsequently applied:

   [a]        For leave to appeal to Her Majesty in Council against the decision of this Court; and

   [b]        For a stay of execution pending the outcome of that appeal or of a petition for leave which his counsel advised us he intended to make directly to Her Majesty in Council; and

   [c]        For bail pending the outcome of the proposed appeal or petition.

4. As Mr Amery eventually accepted during argument, it is settled law that in a case of this kind this Court has no jurisdiction to grant leave to appeal to Her Majesty in Council.  In Flickinger v Crown Colony of Hong Kong [1995] 1 NZLR 439 Cooke P, delivering judgment of a court of five, said that it had been established since Ex parte Bouvy (No 3) (1900) 18 NZLR 608 that a habeas corpus application or an application to prevent extradition in respect of pending criminal proceedings is a criminal matter. The New Zealand (Appeals to the Privy Council) Order 1910 does not authorise this Court to grant leave in criminal matters, as the Judicial Committee itself made clear in Oteri v The Queen [1976] 1 WLR 1272 at 1275, confirming its decision in Chung Chuck v The King [1930] AC 244. The word “judgment” in r2(b), when considered in light of r2(a) and the Order as a whole, has no application to a criminal matter. This Court has itself said in Fryer v Superintendent of Her Majesty’s Prison at Paparua [1979] 1 NZLR 693, 696, that in criminal matters the New Zealand courts have no power to grant leave to appeal to Her Majesty in Council under the Order of 1910. The Court’s jurisdiction in criminal matters is statutory and there is no other provision upon which the present appellant could rely.

5. Furthermore, although the proceeding in this Court was in form an appeal against the refusal of an application for judicial review, it is nevertheless in substance an application in a criminal matter and, as the Court held in Chiu v Richardson(No 2) [1983] NZLR 522, accordingly leave cannot be given. That is unsurprising when, if the case stated route under the Extradition Act had been followed, the appeal to this Court would in terms of s69 of that Act have been governed by s144 of the Summary Proceedings Act 1957, which provides (in subs(5)) that the decision of the Court of Appeal on any appeal under that section “shall be final”. In De Morgan v Director-General of Social Welfare [1997] 3 NZLR 385 the Privy Council, with reference to the use of the word “final” in s67 of the Judicature Act 1908, said that the decision of this Court in a matter falling within ss67 and 68 is truly final and further held, in the cases before it on that occasion, that the statute effectively excluded any appeal to the Privy Council by way of petition. Whether their Lordships would take a similar view of a matter of a criminal nature arising under the Extradition Act must of course be a matter for them.

6. As there is no jurisdiction for this Court to grant leave to appeal, it follows that the Court has no jurisdiction to grant a stay, since there is nothing in respect of which it is presently seized (New Zealand Maori Council v Attorney-General, CA78/96, 27 June 1996).  For the same reason, the Court may not admit Mr Edwards to bail.   A grant of bail pending the outcome of any petition to Her Majesty in Council would operate de facto as a stay and would also appear to be contrary to the scheme of the Extradition Act.  Any available relief must come, if it comes at all, from the Judicial Committee itself.

7. Counsel may file memoranda if the respondent now seeks costs.

Solicitors:

Crown Law Office, Wellington