Mailley v Police HC Auckland CRI-2010-404-229
[2011] NZHC 1465
•12 April 2011
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-229
MARTIN MAILLEY
Appellant
v
NEW ZEALAND POLICE
Respondent
CIV-2010-404-6477
MARTIN JAMES MAILLEY
Plaintiff
v
DISTRICT COURT AT NORTH SHORE
First Defendant
NEW ZEALAND POLICE
Second Defendant
Hearing: 9 March 2011
Appearances: J C Gordon SC and N Walker for the respondent
A Mobberley for the Attorney-General
H Janes as Amicus
No appearance on behalf of the Appellant
Judgment: 12 April 2011
MAILLEY V POLICE HC AK CRI-2010-404-229 12 April 2011
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 12 April 2011 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Law, PO Box 2858, Wellington 6140
Crown Solicitors, PO Box 2213, Auckland 1140
Counsel: H Janes, PO Box 106215, Auckland 1143
G Minchin, PO Box 121464, Waitakere 0659
[1] This decision concerns a case stated appeal and an application for judicial review both of which relate to determinations dated 9 September 2009 and 17 March
2010 made by Judge Hubble in the North Shore District Court that Mr Mailley was eligible for surrender from New Zealand to Australia under s 45 of the Extradition Act 1999 (the Act). Mr Mailley essentially contends that, for a number of reasons, the District Court acted without jurisdiction when making those determinations.
Background
[2] The factual and procedural history of both the proceedings is important, albeit somewhat tortuous. A summary of the earlier stages of the matter can be found in the Court of Appeal‘s judgment relating to the costs awarded on an earlier successful application by Mr Mailley for a writ of habeas corpus.1 In that judgment the Court said:
[7] On 2 July 2008, Mr Mailley was arrested on a bench warrant issued on
30 March 2005 in the District Court, Beenleigh, in the State of Queensland, Australia. This warrant was endorsed on 14 March 2008 by Judge Barbara
Morris in the District Court, North Shore. In the endorsement the Judge,
addressing ‗every member of police‘, said this:
I … authorise and request you to arrest … (Mr Mailley), being the person named in the warrant to which this endorsement relates, and to bring him before a District Court as soon as possible to be further dealt with in accordance with the Extradition Act 1999.
1 General Manager, Auckland Central Remand Prison v Mailley [2009] NZAR 649, [2009] NACA
314, [2009] NZAR 649.
[8] Judge Morris gave no reasons for making this endorsement. But the application she granted was made under s 41 of the Extradition Act. For the purpose of this appeal, we will assume she was satisfied as to the four conditions s 41 imposes and for the reasons set out in the memorandum of counsel for the police. The Judge accepted, we will assume, that: the Queensland warrant emanated from an extradition country, Australia; the Judge of the Queensland District Court who issued the warrant endorsed had authority to do so; Mr Mailley was suspected of being in New Zealand; there were reasonable grounds to believe that he was extraditable to Australia; and the offences for which his arrest was sought were extradition offences.
[9] According to the affidavit evidence from Queensland, the bench warrant was issued after Mr Mailley failed on 30 March 2005 to appear in the District Court, Beenleigh, to answer twelve charges: six of fraud attracting maximum terms of imprisonment of ten years and six of attempted fraud attracting five year maximum terms. Mr Mailley was alleged, over a period of two and a half years, to have obtained by fraud A$185,220 and to have attempted to obtain A$1,790,000.
[10] On 2 July 2008, the day after he was arrested, Mr Mailley was brought before the North Shore District Court. In the first instance, he was remanded in custody until 4 July. He was further remanded seven more times at least, and lastly by Judge Wilson QC on 10 December 2008. The warrant issued that day required that he remain in custody until 22 January 2009. That warrant was brought to an end by the issue of the writ on 17 December 2008.
[11] The successive warrants of detention under which Mr Mailley was detained were identical in general form and modelled on a warrant issued in Wellington. The last warrant, dated 10 December 2008, purported to be issued under ss 26(1)(a), 28(2) and 46(1)(a) of the Extradition Act. It was addressed to every member of police and the Manager of the Mt Eden Prison. It said this:
On 01 February 2007 Australia made a request under s 18 of the Extradition Act 1999 for the surrender of Martin Mailley also known as James Martin Caldwell and on 14 March 2008, B A Morris, District Court Judge, issued a provisional warrant for the arrest of Martin Mailley, also known as James Martin Caldwell.
The warrant issued in Australia for the arrest of Martin Mailley also known as James Martin Caldwell was endorsed on 30 March 2005 by W Tutt, District Court Judge.
On 02 July 2008 Martin Mailley also known as James Martin Caldwell was arrested under the warrant in North Shore, Auckland, where the Court was requested to make a determination of eligibility for surrender. The Judge adjourned the hearing to the District Court at North Shore on 04 July 2008 pending a bail application.
On 10 December 2008, Judge Wilson QC, District Court Judge, directed that the hearing of the extradition application be adjourned to 22 January 2009 at 10 am.
I DIRECT YOU, THE SAID MEMBERS OF THE POLICE, TO DELIVER Martin Mailley also known as James Martin Caldwell to the Manager of Mt Eden Mens Prison; and I DIRECT YOU, THE SAID MANAGER, TO RECEIVE Martin Mailley also known as James Martin Caldwell into custody and to detain him pending surrender to Australia, appearance in Court or discharge according to law.
[12] Under the Judge‘s signature there was, in a smaller font, what was described as additional information, Mr Mailley‘s date of birth and the nature of the charges he faced, ‗fraud and attempted fraud‘.
[13] In his application, dated 12 December 2008, for the writ of habeas corpus eventually granted Mr Mailley contended that both the endorsed warrant, and the warrants issued successively afterwards, were nullities. The principal deficiencies in the warrants of detention, which became the point of focus for John Hansen J, were that they relied wrongly on ss 26(1)(a),
28(2) and 46(1)(a) of the Extradition Act, they referred incorrectly to s 18 and they misdescribed the endorsed Queensland warrant as a provisional
warrant issued under s 42. There was also an inaccuracy as to a date. Those
deficiencies apart, Mr Ellis on Mr Mailley‘s behalf, mounted a wide ranging attack on those warrants and the endorsed warrant on at least three other
fronts.
[14] Mr Ellis challenged both the lawfulness and the admissibility of the Queensland warrant. One cause for challenge was that the police officer seeking to have that warrant endorsed in New Zealand had a vendetta against Mr Mailley. A second was that the warrant endorsed was not issued for an extradition offence. It was neither issued for the fraud charges, nor for failure to appear on those charges, but for Mr Mailley‘s failure to comply with terms of bail that he report to a police station and live at a particular address. This is an offence that does not exist in New Zealand. A third was that the New Zealand Police had no right, on behalf of the Queensland Police, to apply under s 41 to have endorsed a warrant issued in Australia by a Court exercising state jurisdiction. Only the Crown could apply under s 41 and then only on a request by the Commonwealth of Australia.
[15] Counsel appearing for the General Manager, not then Mr Keith, contended in reply that it was only the consequence of the conceded deficiencies in the successive warrants of detention that was ‗properly susceptible to fair and sensible summary determination‘. It was argued that the other points taken were beyond the scope of that application, and to be advanced rather by appeal or review: Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] - [52] (CA) (Manuel (No
1)).
[16] As to the single issue on which counsel for the General Manager did reply, she submitted that there could be no question that the judges who issued the warrants had both the power and the grounds to do so. The warrants themselves, she submitted, were merely administrative. Any errors they contained were merely formal and were explicable, as there was no fully definitive prescribed form. The errors gave rise to no injustice and were capable of cure under s 204 of the Summary Proceedings Act 1957.
[17] In granting the writ, John Hansen J accepted that last submission to this extent. He confined himself to the significance of the errors on the face of the 10 December 2008 warrant, and, implicitly, those in the warrants preceding. He did not, however, see any basis to go behind any of those warrants. They were, he held, the only record of any decision the issuing Judges had made. Their decisions stood or fell with the warrants. He regarded the errors in the last warrant, and those preceding, to be more than merely errors of form. He considered them all to be ‗seriously flawed‘. That in itself, he said, created a significant miscarriage of justice. It was the responsibility of the judges, who issued those warrants, to ensure that they reflected the decisions they had made.
[3] A number of the matters referred to by the Court in [14] above are at issue before me. Before considering their substance, however, it is necessary to return to, and complete the relevant factual narrative.
[4] Mr Mailley was released from custody on 17 December 2008 as a result of John Hansen J‘s grant of habeas corpus and has been on bail since then, while the extradition proceedings continued.
[5] What next occurred is outlined in Judge Hubble‘s decision of 11 September
2009.2 Counsel for the Police was advised that Mr Illingworth QC was now acting for Mr Mailley. Timetables for the filing of various submissions (including as to the
―correct applicant‖ issue referred to by the Court of Appeal) were made by the Court and a date was confirmed for the hearing of the surrender application. Then, in the words of Judge Hubble:
[15] ... The matter came before me on 4 June 2009 where, over a two day period, evidence was called from Detective Palma and submissions were embarked upon by Mr T Shaw and Mr Ellis, then acting for Mr Mailley. The matter could not be completed. The hearing was adjourned to 31 August. Mr Shaw appeared and sought leave on behalf of himself to withdraw because much to their surprise, it appeared Mr Mailley had instructed new counsel, Mr G Minchin who had been involved earlier and was, accordingly ready and willing to proceed.
...
[17] Written submissions from Mr Illingworth QC, Mr Tony Ellis, Mr Anthony Shaw and now Mr Minchin raise numerous criticisms and challenges to the present application. Principle [sic] among these are Mr Illingworth‘s challenge to the jurisdiction of this court to hear the matter at all. He argues that the application should have been made by the
―Commonwealth of Australia‖; not as a result of practical arrangements
2 NZ Police v Mailley DC North Shore CRI 2000-063-544086, 11 September 2009.
between respective police forces of Queensland and New Zealand. Other criticisms appear to have arisen as a result of obiter comments made by Hanson J [sic] in his oral decision on the application for Habeas Corpus. I, therefore, turn to consider these various arguments.
[6] Following the hearings on 4-5 June, 31 August and 1 September, Judge Hubble issued his decision of 11 September 2009 in which he determined that Mr Mailley was eligible for surrender under s 45 of the Act unless he subsequently satisfied the Court that one or more of the discretionary restrictions on surrender under s 8 applied. Judge Hubble recorded at [55] that counsel for Mr Mailley had intimated that he would be relying on three grounds in that respect:
(a) Whether the accusations against Mr Mailley were made in good faith and in the interests of justice, and
(b) That time and delays should contribute to a conclusion that, in all the circumstances of the case, it will be unjust or repressive to surrender the person and thirdly
(c) That the suggestion of Hansen J should be adopted to commence the whole procedure afresh.
[7] A hearing for the s 8 issues was scheduled for 17 March 2010 and submissions and evidence were filed by both Mr Mailley and the respondent in anticipation of this. Two Australian police witnesses were flown to New Zealand from Australia for the hearing, Mr Mailley having said that they were required for cross-examination. However, shortly before the hearing Mr Mailley advised that he was no longer pursuing a s 8 argument. It was on that basis that on 17 March 2010
Judge Hubble made the determination of eligibility final and a surrender order and a warrant for detention were issued under s 46 of the Act.
[8] Before the surrender order took effect, however, Mr Mailley filed a notice of intention to appeal by way of case stated on a question of law.3 The notice specified two questions for the opinion of the Court:
(a) Was the District Court correct to conclude that the New Zealand Police have authority to apply for the extradition of a New Zealand citizen or resident under Part 4 of the Act?; and
3 The provisions in the Summary Proceedings Act 1957 relating to case stated appeals are effectively incorporated into the Extradition Act by virtue of s 69.
(b) Was the District Court correct to conclude that it retained jurisdiction in the proceedings despite the errors identified by the High Court in the habeas corpus proceedings?
[9] Counsel for the respondent opposed the inclusion of the second question and, on 13 August 2010, Judge Hubble stated a case on the first question only, in the following terms:
... whether my conclusion that the New Zealand Police were the appropriate applicant was erroneous in point of law?
[10] The final version of the case stated was transmitted to the High Court on
23 August 2010.
[11] On 27 September 2010 Mr Mailley filed a separate claim for judicial review. An amended application for review was filed on 16 November 2010. Although six grounds of claim were identified in it, the submissions subsequently filed on behalf of Mr Mailley make it clear that the claim is essentially concerned with two errors of law alleged to have been made by Judge Hubble, namely the two questions upon which Mr Mailley had originally sought a case to be stated.
[12] The first issue thus largely or wholly coincides with the case stated by Judge Hubble, the mistake as to the appropriate applicant being said to vitiate the proceedings. The second focuses on various errors of process raised before John Hansen J in the course of his habeas corpus hearing on 17 December 2008 which are said to be cumulatively so fundamental that they deprived the District Court of its jurisdiction in the extradition proceedings. The pleading in this latter respect is problematic and that is a matter to which I shall later return.
[13] Both the case stated appeal and the judicial review proceedings were, for obvious reasons, subsequently directed to be heard together.
[14] Before turning to consider the substance of the two proceedings, it is important to record two further preliminary points.
Mr Mailley’s representation
[15] First, it will be evident from the review of the factual background above that Mr Mailley has had a variety of counsel in the three years since the extradition proceedings were commenced. At the time of Judge Hubble‘s final decision it appears he was represented both by Mr Minchin and by Mr Illingworth QC, although I was advised that Mr Illingworth did not attend before Judge Hubble on 17 March
2010. Mr Illingworth did, however, sign the submissions that were filed in advance of that hearing, prior to the abandonment of the s 8 application.
[16] Similarly in this Court, Mr Minchin appeared on various occasions and again submissions were filed which had been signed by Mr Illingworth. However, during a telephone conference prior to the substantive hearing it became evident to Duffy J that there was a real risk that Mr Mailley might ultimately be unrepresented at it. For that reason her Honour appointed an amicus curiae (Ms Janes) on slightly unusual terms, reflecting no doubt the circumstances as she perceived them to be.
More particularly, Duffy J stated in a minute dated 10 December 2010 that:4
[3] An amicus curiae is to be appointed to assist the Court by providing it with opposing views to those advanced by the New Zealand Police. The hearing will proceed on 2 February 2011. If by then Mr Mailley has still not secured counsel, he may have to appear unrepresented, but in circumstances where the Court will be assisted by amicus curiae. The amicus curiae is to be appointed this year.
[4] Mr Minchin is to convey these matters to Mr Mailley so that it is very clear to him that if he wants legal representation, he should do everything he can to ensure that he is represented at the hearing on 2 February 2011. There will be no further adjournments due to Mr Mailley‘s difficulties in engaging representation.
[17] The reference by Duffy J to adjournments no doubt was reflective of the many delays that have been occasioned by either Mr Mailley or his counsel‘s unavailability during the course of the extradition proceedings in the District Court and in this Court (in relation to the bail matter).
[18] In the event, just prior to the commencement of the hearing before me on
2 February 2011, Mr Minchin filed a memorandum in which he stated:
4 Mailley v Police HC Auckland CRI-2010-404-000229, 10 December 2010.
The applicant will rely on the appearance and submissions of the amicus appointed by the Court and has not instructed Mr Illingworth QC to appear in regard to the appeal and review.
It is understood that Mr Illingworth has had serious pressing family matters to deal with and on his behalf leave is sought for him to be excused.
Counsel has other matters to attend to but could appear if it would assist the
Court.
[19] As a result of that memorandum both Mr Illingworth‘s and Mr Minchin‘s appearances were excused. I indicated to counsel, however, that I was prepared to read and take account of the submissions that had already been filed on Mr Mailley‘s behalf and signed, as I have said, by Mr Illingworth. This I have done.
Questions raised following first day of hearing
[20] The second ancillary matter is that at the close of the first day of hearing before me, and as a result of dialogue with counsel during that day, I issued a minute setting out certain issues that were at that point troubling me. As a result of that minute it was agreed that the hearing should be adjourned to enable counsel to consider the matters raised and in order that the Court could also receive input from the Attorney-General in that respect. It was on that basis that the Attorney was represented by Ms Mobberley when the hearing resumed on 9 March. I record at this point my gratitude for her assistance.
Statutory scheme and operation
[21] The purpose of the Extradition Act 1999 is set out in s 12, which provides:
The object of this Act is to provide for the surrender of an accused or convicted person from New Zealand to an extradition country or from an extradition country to New Zealand, and in particular—
(a) To enable New Zealand to carry out its obligations under extradition treaties; and
(b) To provide a means for New Zealand to give effect to requests for extradition from Commonwealth countries; and
(c) To provide a means for New Zealand to give effect to requests for extradition from non-Commonwealth countries with which New Zealand does not have an extradition treaty; and
(d) To provide a simplified procedure for New Zealand to give effect to requests for extradition from Australia and certain other countries; and
(e) To facilitate the making of requests for the extradition of persons to
New Zealand.
[22] As indicated by s 12, extradition procedures will differ according to the identity of the country seeking extradition.
[23] The way in which the standard, Part 3, procedure is initiated is set out in s 18, which relevantly provides:
(1) A request by an extradition country for the surrender of a person who
-
(a) Is an extraditable person in relation to that country; and
(b) Is, or is suspected of being, in New Zealand or on his or her way to New Zealand,—
must be transmitted to the Minister of Justice. (2) The request must be made—
(a) By a diplomatic or consular representative, or a Minister, of the country that seeks the person's surrender; or
(b) By such other means as is prescribed in a treaty (if any) in force between New Zealand and the extradition country or in any undertakings between New Zealand and the extradition country.
[24] The ―simplified procedure‖ applicable to requests for extradition from Australia (and ―certain other countries‖) is set out in Part 4 of the Act and it is Part 4 that is the focus of the matters before me. Central to that regime is the concept of the
―backed‖ warrant, whereby a warrant issued by a Court in a Part 4 country can simply be endorsed by a New Zealand Court and executed in New Zealand. In that respect s 41 provides:
(1) If a warrant for the arrest of a person issued in an extradition country by a court or a Judge or other person having lawful authority under the law of the extradition country to issue it is produced to a District Court Judge, and the Judge is satisfied that -
(a) The person is, or is suspected of being, in New Zealand or on his or her way to New Zealand; and
(b) There are reasonable grounds to believe that -
(i) The person is an extraditable person in relation to the extradition country; and
(ii) The offence for which the arrest of the person is sought is an extradition offence, -
the Judge may endorse the warrant in the prescribed form to authorise its execution in New Zealand.
(2) A warrant endorsed under subsection (1) is sufficient authority for any constable to execute the warrant in accordance with this Part.
[25] Section 41 implicates a number of statutory definitions.
[26] First, ―extradition country‖ is relevantly defined in s 2 as meaning:
...
(c) in Part 4, any country to which that Part applies under s 39:
...
[27] In turn, s 39 provides that Part 4 applies to Australia and ―any designated country‖.5 And ―country‖ is defined in s 2 as including ―any State, territory, province, or other part of a country‖.
[28] Next, the term ―extraditable person‖ is defined in s 3 as a person who:
(a) ... is accused of having committed an extradition offence against the law of that country; or
(b) ... has been convicted of an extradition offence against the law of that country and -
(i) There is an intention to impose a sentence on the person as a consequence of the conviction; or
(ii) The whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served.
5 The other countries thus far designated for the purposes of Part 4 are the United Kingdom and
Pitcairn Islands.
[29] And ―extradition offence‖ is defined (in relation to an extradition country) in s 4(1) to mean:
(a) ... an offence punishable under the law of the extradition country for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty, and which satisfies the condition in subsection (2):
...
[30] The condition in s 4(2) is essentially that had the impugned conduct occurred in New Zealand, it would have constituted an offence that carries a maximum penalty of not less than 12 months imprisonment.
[31] And the ―prescribed form‖ of endorsement is Form EA6 which is found in the Extradition Regulations 1999 and is as follows:
[32] The concept of endorsed, or ―backed‖, warrants is not new. Its origins can be found in s 13 of the Fugitive Offenders Act 1880, which provided:
13 Backing on one Commonwealth country or warrant issued in another of same group
Where, in a Commonwealth country of a group6 to which this Part of this
Act applies, a warrant has been issued for the apprehension of a person
6 The grouping of Commonwealth countries for the purposes of s 13 was effected by secondary legislation and was based on notions of contiguity and expedience. The relevant grouping from a New Zealand perspective was created by SR & O 1925 No 1031, which grouped New Zealand with the Commonwealth of Australia, Papua, Norfolk Island, New Guinea, Nauru, Western Samoa, Fiji, Gilbert and Ellice Islands and the British Solomon Islands.
accused of an offence punishable by law in that Commonwealth country and such person is or is suspected of being in or on the way to another Commonwealth country of the same group, a Magistrate in the last- mentioned Commonwealth country, if satisfied that the warrant was issued by a person having lawful authority to issue the same, may endorse such warrant in manner provided by this Act, and the warrant so endorsed shall be a sufficient authority to apprehend, within the jurisdiction of the endorsing Magistrate, the person named in the warrant, and bring him before the endorsing Magistrate or some other Magistrate in the same Commonwealth country.
[33] The reasons why such expedited procedures exist are reasonably self-evident but insofar as Australia and New Zealand are concerned, have been expressed in this way by Samuels J in the NSW Court of Appeal:7
It is obvious therefore that Part III takes account not only of the geographical proximity of Australia and New Zealand and the ease and frequency of travel between these two countries, but also of their close economic and political relationship and, no less importantly, of their common legal and political traditions.
[34] In practice, the Part 4 process is initiated by the requesting state seeking assistance directly from the New Zealand Police. The warrant whose endorsement is sought is provided by the requesting state to the Police. Police Liaison Officers assess it and, if necessary, seek or provide any further information that may be necessary in order for endorsement to occur. As a matter of convention, the relevant Crown Solicitors then become involved and it is they who initiate and have carriage of the Court proceedings.
[35] Once a warrant has been endorsed, the Police then have a statutory operational role under the Extradition Act. Section 41(2) authorises any constable to execute an endorsed warrant by arresting the person sought and ss 44 and 45 of the Act stipulate what is then to occur. Those sections relevantly provide:
44 Procedure following arrest
(1) A person arrested on a warrant endorsed under section 41 or on a provisional arrest warrant must, unless sooner discharged, be brought before a court as soon as possible.
(2) The person -
(a) Is not bailable as of right; and
7 Bates v McDonald (1985) 2 NSWLR 89 (CA) at 98.
(b) May not go at large without bail.
(3) If the court remands the person on bail, the court may impose any conditions of bail that the court thinks fit in addition to any conditions that the court may impose under section 31 of the Bail Act 2000.
...
45 Determination of eligibility for surrender
(1) Subject to section 44(4)8, if a person is brought before a court under this Part, the court must determine whether the person is eligible for surrender in relation to the offence or offences for which surrender is sought.
(2) Subject to subsections (3) and (4), the person is eligible for surrender if -
(a) A warrant for the arrest of the person described in section 41(1) and endorsed under that section has been produced to the court; and
(b) The court is satisfied that—
(i) The person is an extraditable person in relation to the extradition country; and
(ii) The offence is an extradition offence in relation to the extradition country.
(3) The person is not eligible for surrender if the person satisfies the court—
(a) That a mandatory restriction on the surrender of the person applies under section 7; or
(b) That the person's surrender would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country.
(4) The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8.
(5) In the proceedings under this section,—
(a) The person to whom the proceedings relate is not entitled to adduce, and the court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which surrender is sought; and
8 Section 44(4) relates to cases where a provisional arrest warrant has been issued under s 42 and is not relevant to the present analysis.
(b) Nothing in this section requires evidence to be produced or given at the hearing to establish the matters described in subparagraphs (i) and (ii) of section 24(2)(d).
(6) Without limiting; the circumstances in which the court may adjourn a hearing, if—
(a) A document or documents containing a deficiency or deficiencies of relevance to the proceedings are produced; and
(b) The court considers the deficiency or deficiencies to be of a minor nature,—
the court may adjourn the hearing for such period as it considers reasonable to allow the deficiency or deficiencies to be remedied.
[36] A determination by the Court that an application prima facie meets the criteria for surrender is, however, subject to the restrictions on surrender contained in ss 7 and 8. Section 7 is not at issue in the present case and is concerned with mandatory restrictions that relate primarily to cases in which extradition is sought for crimes of a political character or for which the penalty that the person may be subjected to is due to that person‘s race, ethnic origin, religion, nationality, sex or other status. Section 8 relates to discretionary restrictions, and states:
(1) A discretionary restriction on surrender exists if, because of –
(a) The trivial nature of the case; or
(b) If the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(c) The amount of time that has passed since the offence is alleged to have been committed or was committed, -
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
(2) A discretionary restriction on surrender exists if the person has been accused of an offence within the jurisdiction of New Zealand (other than an offence for which his or her surrender is sought), and the proceedings against the person have not been disposed of.
[37] If the Court considers that restrictions on surrender exist, or may exist, it may under s 48, refer the case to the Minister to make the final decision. That section also specifies other circumstances in which a reference to the Minister may be made,
including where it appears to the Court that it would be unjust or oppressive to surrender the person:
... because of compelling or extraordinary circumstances of the person, including without limitation, those relating to the age or health of the person
...
[38] If the Court is satisfied that the person sought is eligible for surrender and no reference to the Minister is made, then a warrant for the detention of that person must be issued immediately: ss 45 and 46.
Is the NZ Police the “appropriate” applicant?
Mr Mailley’s position
[39] Mr Mailley‘s position on this issue was summarised by Judge Hubble between [21] and [24] of his decision. He said:
[21] Mr Illingworth, however, relies first upon s 6 of the Act which provides as follows:
6 Application of Act
An extraditable person who is in New Zealand and who is sought by an extradition country may be surrendered in accordance with either Part 3 or Part 4 -
[22] Mr Illingworth draws from this that the extradition must be sought by
the ―extradition country‖. Not merely by police officers.
[23] He accepts that Australia is a specially designated country under
Part 4 but s 39, provides as follows:
39 Application of this Part
This Part applies to –
(a) Australia; and
(b) Any designated country.
[24] The claim here, therefore, is that the reference is to ―Australia‖ i.e. the Commonwealth of Australia, not merely a police officer or indeed it appears some state of Australia. The argument is, therefore, that the process of extradition from New Zealand must be initiated by way of a request for extradition from another country and it is contrary to the
scheme of the Act for the State of Queensland or, indeed, some agency such as the police, on behalf of Queensland, to apply for extradition of a New Zealand resident.
[40] Essentially the same contentions were advanced in the submissions filed on behalf of Mr Mailley in this Court.
Crown position
[41] It was accepted by the respondent that entituling practice in extradition proceedings varies, particularly in relation to Part 4 matters. It seems that applications under Part 4 have been made in the name of:
(a) The requesting Part 4 country; (b) The Police; and
(c) The Police on behalf of the Part 4 country.
[42] Ordinarily the intituling of a Part 4 application will usually state that it is ―in
the matter of an application for determination of eligibility for surrender to [the Part
4 country] pursuant to s 45 of the Extradition Act‖.
[43] Before Judge Hubble the respondent contended that the New Zealand Police were the appropriate applicants because that best reflected the way Part 4 worked in practice and the role played by the Police both in New Zealand and, reciprocally, in Australia. While not resiling from that position, it is fair to say that the position of the respondent and the Attorney before me became somewhat more nuanced.
Judge Hubble’s decision
[44] In rejecting Mr Mailley‘s position Judge Hubble relied, first, on s 61 of the Act which provides that extradition requests by New Zealand to a Part 4 country may be made by the Commissioner of Police. He contrasted this with the position under Part 3 where, he said, ―it is clear that formal requests must be made from a Country
or State or the Attorney General of a country‖. Secondly, the learned District Court Judge considered the evidence before him as to the position in Australia in relation to New Zealand extradition requests. He made particular reference to documents issued by the Australian Attorney General‘s department explaining the procedures which, he said, accorded with the evidence before him from New Zealand Police
Officers as to the process here. He concluded:9
[35] I do not accept that there is any substance in the submission that the
―Commonwealth of Australia‖ was the only appropriate applicant. I am
satisfied from the documentation presented that the reciprocal arrangement between Australia and New Zealand clearly allows the New Zealand Commissioner of Police ― or his or her del egate‖ to make the application and this also applies in Australia.
[36] It may be, as Mr Minchin has submitted, that the New Zealand taxpayer may incur a cost burden as the delegated authority on behalf of the Australians but over time the costs burden would be balanced between the two countries. This is not a relevant consideration.
[37] The applicant was able to refer to many cases where an application for extradition to Australia has been made by the Police. Mr Minchin properly argues that the mere fact that there have been many prior instances where the issue has not been raised, does not mean to say that it is correct. In my judgment, however, the past practice is correct and in relation to Part 4, the New Zealand police are the appropriate applicant.
Discussion
[45] One of the fundamental differences between the backed warrant regime contained in Part 4 of the Act and the orthodox extradition procedure contained in Part 3 is that no formal ―government to government‖ request is required in order for the process to commence. Importantly, and by comparison with a Part 3 process commenced under s 18 of the Act, there will be no ―government‖ or Ministerial involvement in, or even knowledge of, the initiation of a Part 4 process.
[46] As s 41 makes clear, all that is required for the initiation of Part 4 proceedings is the production to a New Zealand Judge of a warrant from the relevant court in the extradition country, and the Judge then satisfying himself that the (relatively low) threshold for endorsement is met. The concept of ―production‖
seems to me quite different from the concept of ―application‖ and, consistent with
9 NZ Police v Mailley DC North Shore CRI 2000-063-544086, 11 September 2009.
that, s 41 also makes it clear that any positive obligations imposed by the section rest with the Court, not with the ―producer‖ of the warrant. The passive language used in the section is, I think, deliberate.
[47] As a matter of operational reality the ―producer‖ in s 41 matters is the New Zealand Police who (with the assistance of the Crown Solicitors), it seems to me, act effectively as an intermediary between the Australian and the New Zealand Court. There is nothing in the Act that conflicts with that practice.
[48] If the warrant is endorsed by the Court, any member of the New Zealand Police is expressly authorised to execute it by s 41(2). Once that occurs the arrested person is required to be brought before the Court and, again, a positive obligation is then imposed on the Court to determine eligibility for surrender. To the extent the Police continued to play a role in that process, it could, I think, properly be viewed as incidental to the authority conferred upon them by s 41(2).
[49] I accept that s 43 requires that s 45 (eligibility for surrender) proceedings be conducted ―in the same manner, as if the person were charged with a summary offence‖. This arguably suggests that, if the application for surrender is opposed, such proceedings will be adversarial in nature, with opposing ―parties‖ in that common law sense. And to the extent the process is adversarial there is an argument that the requesting authority or state (being the entity most directly interested in the outcome) should be a party to it. But I think care needs to be taken not to analogise too far.
[50] In my view the way in which Part 4 is framed suggests that such proceedings are not adversarial but more inquisitorial. In that respect comments made by the English High Court in R (on the application of the Government of the United States of America) v the Senior District Court Judge, Bow St Magistrates Court & Ors10 seem relevant. At [85] of that case, the Court stated:
Both our civil and our criminal procedures have complex rules in relation to disclosure of documents. In each of the cases before us the persons whose extradition is being sought have persuaded the judge that he should make an
order for disclosure. We do not consider that this was the appropriate course to take. Neither the rules governing disclosure in a civil action, nor those governing disclosure in a criminal trial can be applied to an extradition hearing. Furthermore, those rules form part of an adversarial process which differs from extradition proceedings. Where an order for disclosure is made, it requires one party to disclose documents to the other, not to the court. But where extradition is sought, the court is under a duty to satisfy itself that all the requirements for making the order are satisfied and that none of the bars to making the order exists. [emphasis added]
[51] The Court then went on to note that disclosure could not in any event be ordered by an English Court against either a judicial authority within the European Union (in the context of the backed warrant regime that operates within the Union) or against a foreign Sovereign State that is requesting the Secretary of State to comply with treaty obligations.
[52] The New Zealand courts are, I think, plainly in the same position under the Extradition Act. Although information is required by the District Court to perform its Part 4 functions, that need cannot be advanced by making the requesting state formally a party to, or requiring it to be represented at, the hearing. As the English authorities again make clear, the Court is instead reliant on:
(a) the duty of candour and good faith that is owed (as an incident of comity) by the requesting authority or state to the Courts of a requested state; and
(b)the duty that lies on the Crown Solicitors (or the CPS in the case of the United Kingdom) to ensure that all relevant information (including information that is adverse to the position of the requesting authority or state) is before the Court.
[53] In these respects the English Court of Appeal in Raissi v Secretary for State for the Home Department11 said at [139]-[140]:
The CPS's duty to the court will also, in our view, include a duty to ensure that the requesting state complies with its duty of disclosure. The issue as to the whether the requesting state has a duty of disclosure in extradition cases has recently been considered by the Privy Council in Knowles v Government
of the United States of America [2006] UKPC 38, [2007] 1 WLR47 at paragraphs 34-35:
"34. Some doubt has arisen concerning a requesting state's duty of disclosure in extradition cases. Giving the judgment of the Divisional Court in R v Governor of Pentonville Prison, Ex p Lee [1993] 1 WLR 1294, 1300, Ognall J distinguished between extradition proceedings and domestic criminal proceedings, observing that "fairness is not a criterion relevant to the function of the committing court". It was suggested in R v Governor of HMP Brixton, Ex p Kashamu (Divisional Court, 6 October 2000, unreported) that this observation could not stand in the light of articles 5 and 6 of the European Convention, but in Lodhi v Governor of HMP Brixton [2001] EWHC Admin 178, paras 108-
115, Ognall J's judgment was held by another Divisional Court to remain good law. This was because it had been held by the
European Commission in Kirkwood v United Kingdom (1984) 6
EHRR CD 373 that article 6 has no application to extradition proceedings.
36. The Board would hesitate to adopt the full breadth of Ognall J's observation. There are many respects in which extradition proceedings must, to be lawful, be fairly conducted. But a requesting state is not under any general duty of disclosure similar to that imposed on a prosecutor in English criminal proceedings. It does, however, owe the court of the requested state a duty of candour and good faith. While it is for the requesting state to decide what evidence it will rely on to seek a committal, it must in pursuance of that duty disclose evidence which destroys or very severely undermines the evidence on which it relies. It is for the party seeking to resist an order to establish a breach of duty by the requesting state. The Board would endorse the general approach laid down by Mitting J (sitting with Lord Woolf CJ in the Divisional Court) in Wellington v Governor of HMP Belmarsh [2004] EWHC
418 (Admin), para 26. In the present case the appellant has failed to discharge the burden lying on him." (Underlining added)
It must follow, in our view, that the CPS has a duty to disclose evidence about which it knows and which destroys or severely undermines the evidence on which the requesting state relies. This would also apply in the context of contested applications for bail. To take an example from the facts alleged in the present case, if the CPS did not disclose the material in its possession which cast doubt on the accuracy of the affidavit of Mr Plunkett, that would be a breach of its duty of disclosure.
[54] Crown Solicitors thus cannot properly be regarded as advocates of the requesting state but on the one hand as part of the machinery whereby (through the New Zealand Police) the Court receives relevant information and on the other as assistants to the Court in terms of ensuring the completeness and the reliability of that information.
[55] The existence of these twin duties are, I think, of particular importance in the present context. That is firstly because, as Ms Walker submitted, they exist independently of the identity of any person, authority or state who may be formally named as the ―applicant‖ in a Part 4 proceeding. And relatedly, the duties fortify the view that Part 4 proceedings are not usefully viewed in strict adversarial terms and, similarly, that it is merely unnecessarily diverting to focus on the terminology of
―applicants‖ and ―respondents‖ in that respect.
[56] It is tempting therefore to conclude that the case stated by Judge Hubble asked the wrong question. However, I am not certain that such an answer would satisfy the requirements of s 112 of the Summary Proceedings Act, which requires the Court to ―determine‖ the question of law arising on the case.
[57] Accordingly, my answer to the case stated is that insofar as the Extradition Act is properly to be interpreted as requiring a Part 4 proceeding to be brought and conducted as an application strictly so-called, Judge Hubble‘s conclusion that ―the New Zealand Police was the appropriate applicant‖ was not erroneous in point of law. That conclusion was in my view consistent with the provisions of Part 4 and the role played by the New Zealand Police under it. Conversely, none of the Part 4 processes suggest that the extradition country itself is required to be a party to proceedings under that Part (that being Mr Mailley‘s position). In fact, nowhere in Part 4 is an ―extradition country‖ required to do anything.
[58] Lest the views I have expressed or my somewhat guarded answer to the case stated be interpreted as implying that some (unpleaded) error has been made in the commencement or carriage of Mr Mailley‘s proceedings, I wish to make it clear that that is not so. In particular I accept Ms Mobberley‘s submission that the
―cosmopolitan‖ approach to the interpretation and application of extradition statutes espoused by the House of Lords in In re Ismail12 should be adopted here. In that case Lord Steyn (with whom the other members of the Committee concurred) said at
327:
There is a transnational interest in the achievement of [the aim of bringing to justice those accused of serious crimes]. Extradition treaties, and extradition
12 In re Ismail [1999] 1 AC 320 (HL).
statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg. v. Governor of Ashford, Ex parte Postlethwaite [1988] A.C. 924, 946H-947D. That approach has been applied by the Privy Council to the meaning of "accused" in an extradition treaty: Rey v. Government of Switzerland [1998]
3 W.L.R. 1, 7B. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure,
and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment.
...
In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement ... is satisfied.
[59] In endorsing that statement, I do not disregard Ms Janes‘ submission that the Courts must also be vigilant in extradition matters to protect persons whose extradition is sought from the overreaching of their rights. That is plainly correct. Rather, I say that such vigilance does not require the taking or upholding of unmeritorious, arcane or technical points that have no substantive effect on the Part 4 process itself. And if the District Court can be confident that all relevant material will be brought to its attention (a confidence that necessarily flows from the observance of the twin duties to which I have referred above) and is thus able properly to perform its own statutory functions, then such technical matters can be of no consequence.
[60] For all the reasons given above, the first ground of judicial review must fail.
Second ground of judicial review: has a substantial miscarriage occurred?
[61] The pleading of Mr Mailley‘s second ground of review (which, like the first, is founded on the contention that the District Court had no jurisdiction in the extradition proceedings) is unorthodox. The amended statement of claim centrally alleges at paragraph 2.5(b) that:
As a result of the errors identified by the plaintiff in the submissions [filed in the District Court on 17 April 2009 and annexed to the amended statement of claim], including the findings made in the habeas corpus judgment to which reference is made in the submissions at paragraphs 3.1 to 3.6 (―the findings‖) the extradition proceedings had miscarried to such a serious degree that the Court had no lawful authority to adjudicate upon the extradition proceedings.
[62] With the assistance of Ms Walker‘s careful submissions I have been able to analyse the apparent effect of the purported incorporation in the pleadings of both the submissions filed in the District Court on 17 April 2009 and the findings of John Hansen J in his judgment of 17 December 2008 as follows.
[63] As it happens that portion of the 17 April 2009 submissions dealing with the alleged ―miscarriage‖ is confined to (a) the ―findings‖ made by John Hansen J and (b) delay. The submissions make it clear that the particular passages from John Hansen J‘s judgment upon which Mr Mailley relies are paragraphs [5] – [7], [10] and [11] in which his Honour stated:
[5] Of more moment, however, in my view, for present purposes is the warrant for detention that has been issued on a continuing basis since July. The final one with which we are concerned today is dated 10 December
2008 and was signed by his Honour Judge Wilson QC. Counsel for the defendant responsibly accepts that there are errors on the face of this document. However, she mounts the substantive argument that they are errors of an administrative or minor kind that in no way attack the validity of the order to detain Mr Mailley in custody.
[6] It is perhaps appropriate at this juncture to detail those continuing defects. It is apparent from the affidavit of the Deputy Registrar of the North Shore Court that when the first of these orders was made she was unaware of the appropriate form to use. She sought precedent documents from other registries and used those to create a document which she says she believed reflected the Judge‘s order. The errors can be found in the intituling where there are references to ss 26, 28 and 46 of the Extradition Act which it is accepted are irrelevant for present purposes. The body of the document then records that Australia, as opposed to the Commonwealth of Australia, made a request under the Extradition Act on the 1 February 2007. That date is incorrect. It is explained that the Deputy Registrar must have picked it up from the affidavit of Detective Mark Palma. However, the Australian affidavit is in fact dated 5 February 2007, not 1 February.
[7] The document then purports to state that the request was made under s
18 of the Extradition Act 1999. That is incorrect; it was not. It then records that on 14 March 2008 a provisional warrant was issued by Judge Morris.
Again a mistake.
...
[10] The difficulty in this case is that there is absolutely no evidence of the orders that were made in Court by these various District Court Judges and it appears that at least one was made in Chambers back-dating the order, although I accept the proper submission that we are concerned with the 10
December one. There is no way of knowing what order Judge Wilson made in Court. We can only act on the face of the warrant. The face of the warrant, in my view, is seriously flawed. This man has been held in custody
since 2 July pursuant to such a flawed order and that in itself, in my view, creates a significant miscarriage of justice.
[11] I would also add that some serious consideration needs to be given to the flaws that are apartment [sic –should be ―apparent‖] to date in the extradition proceedings because they may be so fatal the process needs to start again, but that is for others to determine. However, I am quite satisfied on the basis of the order which is flawed, in the absence of any evidence of what orders were made in Court, that this applicant is entitled to the writ he seeks.
[64] The submissions then go on:
In short, His Honour was of the tentative view that the extradition proceedings had miscarried so seriously as a result of the District Court‘s repeated ultra vires conduct that the whole process had become fatally flawed.
It is submitted that His Honour was clearly right: having caused the respondent to be unlawfully incarcerated for several months, and having failed so seriously to observe the applicable requirements of the statutory scheme, the District Court cannot now legitimately claim to be continuing to act within the scope of its statutory authority.
It is clear that the exercise of statutory powers may miscarry in a manner that undermines the legitimacy and validity of the whole process: Auckland City Council v Larsen [1987] 2 NZLR 583.
[65] As Ms Walker pointed out, the ―flaws‖ referred to by John Hansen J at [11] of his judgment as being ―for others to determine‖ are necessarily flaws other than those relating to the form of the detention warrant which was the subject of the hearing before him. Rather, they were alleged flaws in the wider extradition process that had also been canvassed by Mr Mailley‘s counsel at the habeas corpus hearing. This is confirmed by reference to [3] of John Hansen J‘s judgment where he said:
In the course of submissions, Mr Ellis, in his careful way, has mounted a thorough and sustained attack on the extradition process. There are certainly matters that give strong grounds to think that this was an extremely flawed process. However, I do not consider I need to go into those in detail today for reasons that will become apparent.
[66] Thus in order to ascertain what these alleged flaws were, it then becomes necessary to revert to the submissions presented by Mr Ellis before John Hansen J. It appears these were in fact tendered to Judge Hubble on 4 June 2009. They are
36 pages and some 137 paragraphs in length. No distinction is drawn in them
between the errors that go directly to the validity of the detention warrant and the flaws alleged as to the wider process.
[67] Nonetheless the alleged wider flaws were manfully considered and addressed by Judge Hubble between [38] and [51] of his decision of 11 September 2009. The learned District Court Judge made it clear that he did not even know whether some of them were still being pursued by Mr Minchin on behalf of Mailley. The particular issues identified were:
(a) Whether the arrest warrant in Australia had been issued merely in relation to a breach of bail (rather than in respect of an ―extradition offence‖);
(b)The significance of an old form having been used for the bench warrant;
(c) The allegation that there was a breach of the separation of powers during the endorsement of the warrant resulting from assistance rendered to Judge Morris by the Crown Law Office as to the form of the endorsement;
(d)Whether there were defects in the form of some of the documents placed before Judge Morris; and
(e) Whether certain of the Australian documents relied on by Judge
Morris had been properly authenticated in terms of s 78 of the Act.
[68] Judge Hubble‘s conclusion was that none of these arguments had merit. He went on more generally to say (at [52] – [53]):
Mr Minchin‘s general submission is that there has been an abuse of process generally. First relying upon the many alleged errors and omissions referred to above and secondly, picking up on Justice Hansen‘s comments concerning his grant of Habeas Corpus and the multiple errors, lack of authentication and carelessness in the issue of rolled over warrants whilst Mr Mailley was in custody. These factors it is argued should all result in a refusal to grant the present application.
In my judgment, all of these issues are more appropriate to an argument under s 8 as to whether the Court should exercise its discretion not to approve the surrender of Mr Mailley. The same can be said for arguments based on the delays and Mr Mailley‘s current state of health.
At present, however, my focus should be on the following:
(a) That a warrant for arrest of Mr Mailley, described in s 41(1) and endorsed under that section by Judge Morris has been produced to the Court and
(b) Mr Mailley is an extraditable person in relation to the extradition country in that he is accused of having committed an extradition offence against the law of Australia; and
(c) The alleged offences which I accept are offences of fraudulent dealing involving potential punishments of ten years or seven years imprisonment are extradition offences in relation to Australia.
[69] And in these respects the amended statement of claim pleads (at paragraphs
3.2(b) – (d)) that Judge Hubble‘s decision was invalid because:
Section 8 of the Act provided no authority for the Court to determine the issue referred to in paragraph 2.5(b) hereof and by deciding to address the issue as if it were a discretionary consideration under section 8, rather than as an issue going to its jurisdiction, the Court made an error of law.
For the reasons set out in the submissions, the extradition proceedings had miscarried to such a serious degree that the Court was no longer possessed of lawful authority to adjudicate in respect of the proceedings.
At all material times after December 2008 the defendants were bound by the findings and the defendants remain bound by the findings in the present proceedings because:
(i) The findings were res judicata; or
(ii) The findings created an issue estoppels; or
(iii) It would be an abuse of process to attempt to relitigate the findings.
[70] In terms of the second issue of delay raised in the ―incorporated‖ submissions
of 17 April 2009, those submissions state:
... this matter has been protracted over an extraordinarily long period of time. Little blame, if any, can be laid at the feet of the respondent for the delays. At every stage of the extended process, right down to the date of the habeas corpus judgment, the respondent was held in custody unlawfully.
The Act contemplates that extradition matters will be dealt with both lawfully and promptly. As stated above, section 45(1) provides (emphasis added):
(1) Subject to section 44(4), if a person is brought before a court under this Part, the court must determine whether the person is eligible for surrender in relation to the offence or offences for which surrender is sought.
It is accepted that the Court has power to adjourn the proceedings, but the delays that have occurred were extreme and represent a contributing factor in relation to whether the current proceedings have miscarried in a way that is fatal to their ongoing validity.
It is submitted that an overall assessment leads inexorably to the conclusion that the proceedings have ―gone off the rails‖ to such an extent that they cannot now be regarded as falling within the scope of the authorising legislation.
[71] Although the allegation of undue delay was not directly dealt with by Judge Hubble (his view quite rightly being that it was a matter relevant to a s 8 inquiry) he does very helpfully set out a lengthy table detailing each step taken in the proceedings and the reasons for any adjournment granted. In my view that table overwhelmingly points to a conclusion that responsibility for much of the delay lies properly at the feet of Mr Mailley or his counsel.
[72] The complexity of the above analysis reveals beyond dispute how deeply unsatisfactory these aspects of Mr Mailley‘s pleading are. Contrary to the requirements of the High Court Rules, the grounds for the ―miscarriage‖ claim are far from evident from the face of the amended statement of claim and one‘s strong inclination is simply to dismiss it on the basis that, on its face, the pleading is inchoate and unintelligible. However the defendants did not ask me to do so and instead attempted to deal with the matter on the merits and that is the approach I, too, rather reluctantly shall adopt.
[73] A number of fundamental points can be made at the outset.
[74] First, those parts of the claim that purport to rely directly on some sort of estoppel arising from John Hansen J‘s ―findings‖ must fail. Any comments made by him in relation to flaws in the extradition process (as opposed to the flaws in the warrant) are patently (and, indeed, expressly) obiter and of no binding effect.
Conversely, while his Honour‘s finding of a ―miscarriage of justice‖ in [11] is not obiter, it is of narrow application. The finding was made in the context of considering whether the defects in the warrant that was before him could be cured by s 204 of the Summary Proceedings Act and, more particularly, reflected the fact that Mr Mailley had at that point been detained for some months pursuant to the defective warrant. It seems to me that that finding (that there had in that specific context been a miscarriage) can have no direct bearing on the present application for review; Mr Mailley has had his remedy; he is no longer in custody.
[75] Secondly, I accept Ms Walker‘s submission that the alleged flaws of process, even if made out, could not deprive the District Court of jurisdiction. More particularly:
(a) I do not consider that the decision in Auckland City Council v Larsen13 is authority for such a proposition (that case being concerned with the legitimacy or legality of actions taken by a traffic officer, not by the District Court);
(b)Conversely, there is considerable authority that errors of process or mistakes of law made by an inferior court do not deprive that court of jurisdiction: Sirros v Moore;14 Harvey v Derrick15; Taylor v
Superintendent, Waikato Bay of Plenty Regional Prison16; Crequer v
The Chief Executive, Department of Corrections.17
[76] To the extent that the statement made by John Hansen J at [11] suggests otherwise, I therefore respectfully disagree.
[77] Thirdly, any complaint as to delay could, as I have said, have been raised by Mr Mailley as a discretionary restriction under s 8. The amount of time that has passed since the offence is alleged to have been committed is expressly referred to in
that section. Indeed, at the time of Judge Hubble‘s first decision it appears that
13 Auckland City Council v Larsen [1987] 2 NZLR 583 (HC).
14 Sirros v Moore [1975] QB 118 (CA).
15 Harvey v Derrick [1995] 1 NZLR 314 (CA).
16 Taylor v Superintendent, Waikato Bay of Plenty Regional Prison [2002] NZAR 425 (CA).17 Crequer v The Chief Executive, Department of Corrections [2010] NZAR 208 (CA).
Mr Mailley‘s intention was to do just that (see [55] of his judgment quoted at [6] above). As I have noted, however, Mr Mailley decided ultimately not to pursue the s 8 hearing. Judge Hubble‘s subsequent, final, surrender decision cannot therefore be impugned because he failed to take into account a matter that was not pursued before him.18
[78] That said, however, there is some merit in the pleading that Judge Hubble was wrong to say that the other ―flaws‖ alleged by Mr Mailley were matters that could be dealt with in the s 8 inquiry.19 But the reality is that the learned District Court Judge had already considered and rejected the flaw allegations on their merits. Moreover to the extent that any of the alleged flaws were relevant to his eligibility inquiry (which is the only inquiry with which he was, or I am presently, concerned), they were necessarily cured by Judge Hubble‘s own determination of that matter.
[79] Significantly, to the extent that any of the alleged flaws are said to relate to the validity of the endorsed warrant20 Judge Morris had been required under s 41(1)(b) to be:
... satisfied that -
(b) there are reasonable grounds to believe that
(i) The person is an extraditable person in relation to the extradition country; and
(ii) The offence for which the arrest of the person is sought is an extradition offence.
[80] An identical (but more stringent) inquiry was required of Judge Hubble under s 45(2)(b), by which he was required to be:
(b) ... satisfied that—
(i) The person is an extraditable person in relation to the extradition country; and
18 I have in any event already recorded above my own view that much of the delay in Mr Mailley‘s
case must be sheeted home to him. This was also clearly Judge Hubble‘s view.
19 Mr Mailley‘s ill-health might potentially constitute grounds for a reference to the Minister under s
48(4) but no issue was raised on the pleadings in that regard.
20 As appears to be the case in relation to at least the first, fourth and fifth flaws identified by Judge
Hubble and as recorded at [66] above.
(ii) The offence is an extradition offence in relation to the extradition country.
[81] Under both s 41 and s 45 the Judges‘ ―satisfaction‖ will turn on the evidence and documents before him or her to which any Part 9 prerequisites to admissibility, (including, where appropriate, authentication) will be applied. Thus the fact of Judge Hubble‘s satisfaction as to those matters necessarily implies either that there were no prior errors or that they have been rectified and cannot operate to vitiate the s 45 proceedings.
[82] For all these reasons I consider that the ―miscarriage‖ claim cannot succeed. I hasten to re-emphasise that in my view the serious deficiencies in the pleadings (which are not limited to their inchoate nature and include the unavailability of a claim founded on absence of jurisdiction) by themselves warrant the claim‘s dismissal. The remainder of my analysis above merely fortifies the views I have reached in that respect.
Result
[83] Finally, and in formal terms:
(a) The answer to the case stated appeal is ―no‖ (Judge Hubble‘s conclusion that the New Zealand Police were the appropriate applicant was not erroneous in point of law)
(b) The application for judicial review is dismissed.
Rebecca Ellis J
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