Muller v United States of America HC Auckland CIV 2006-404-7667

[2007] NZHC 1658

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-007667

IN THE MATTER OF     a case stated on appeal from a determination of the District Court that the Appellant was eligible for surrender to the United States of America

BETWEEN  ROBIN MULLER Appellant

ANDUNITED STATES OF AMERICA Respondent

Hearing:         23 February 2007

Appearances: Appellant in person

M J Ruffin for Crown

Judgment:      23 February 2007

ORAL JUDGMENT OF VENNING J

Solicitors:           Meredith Connell, Auckland

Copy to:            Robin Muller

MULLER V UNITED STATES OF AMERICA HC AK CIV 2006-404-007667  23 February 2007

[1]      This is a case stated on appeal from a determination of the District Court.  It relates to the extradition of the appellant Mr Muller at the request of the United States of America.

Representation

[2]      The matter first came before me at 11.45 a.m. on Wednesday this week, 21

February 2007.  At that time counsel who had represented Mr Muller in the District Court, Mr Speed, sought leave to withdraw through Mr Hacking.  I granted leave to withdraw   as   his   instructions   had   been   terminated.      Mr   Muller   sought   an adjournment.    I agreed  to  an  adjournment  but  only  until  today  because  it  was apparent from the file and what counsel for the United States of America advised the Court that Mr Muller has had a number of counsel represent him in relation to this matter in the District Court before Mr Speed became involved.  It was Mr Muller’s choice to terminate his instructions to Mr Speed and he only did so on or about 14

February 2007.  I was also satisfied that Mr Muller was well aware of the matters in issue.  He had had the papers for some time, including a copy of the submissions that Mr Ruffin had prepared for the United States of America in relation to this matter. Mr  Muller  explained  that  he  had  recently sent  those  off  to  another  person  but Mr Ruffin was able to give him a copy of those full submissions on Wednesday.  On that basis the matter was adjourned for hearing at 2.15 this afternoon to enable Mr Muller further time to prepare for the hearing.

[3]     At the outset of the hearing this afternoon Mr Muller sought a further adjournment to enable an inmate that he had discussed the matter with over the last two days to assist him present his case.   In fact a request had come through the Registrar yesterday for that inmate to also be produced today.  I declined that request and Mr Muller’s request for adjournment.

[4]      It is one thing to have a person assist a litigant in person as a Mackenzie friend.  It is quite another thing to require an order to produce another inmate from prison to come along and assist someone such as Mr Muller, in particular when Mr Muller has had legal representation throughout and has chosen himself to terminate instructions when counsel was otherwise able to present the case for him.

[5]      Since the start of these proceedings Mr Muller has been represented by a number of different lawyers.   During the process in the District Court he was represented  by lawyers  from  the Public  Defenders  office,  then  by Mr  Nalesoni Tupou.  He then instructed Mr Chambers who was not able to attend on the day of the hearing.  Mr Speed attended and successfully obtained an adjournment before the District Court and then argued the matter substantively in the District Court.  As I note Mr Speed’s instructions were terminated by the appellant on 14 February this year, a week before this hearing.

[6]      Mr Muller is well aware of the issues that he has to face.  As I say he has also had the advantage of having the full Crown submissions and authorities since at least Wednesday personally.

[7]      For those reasons I declined Mr Muller’s request for a further adjournment from this afternoon.

[8]      It was also apparent from the submissions Mr Muller presented to the Court that he understood the principal issue, which was one of timing and the application of s 23 of the Extradition Act.   It is apparent from his submissions that he had considerable   assistance   with   the   preparation   of   his   case   and   had   a   good understanding of it.

Background

[9]      I  take  the  following  summary  from  the  case  stated.    On  19  May  1995

Mr Muller  pleaded  guilty  to  the  charge  of  conspiracy  to  distribute  over  five kilograms of cocaine in violation of Title 21 United States Code section 846.  The sentencing date was set for August 1995.  On 25 May 1995 Mr Muller was granted bail to travel to Nevada to marry Vivian Kaitapu.  Between 5 and 7 June 1995 Mr Muller absconded.  On 8 June 1995 a warrant of arrest was issued in America.  On

22 August 1995 a further warrant was issued in America as Mr Muller had failed to appear for sentence.

[10]     On 30 May 2006 in New Zealand a provisional warrant for arrest of Mr Muller was issued by Judge Thorburn.  On 6 June 2006 Mr Muller was arrested in New Zealand and taken into custody pursuant to the provisional warrant for arrest.

[11]     On 9 June 2006 an application was filed in the District Court at Auckland by the United States of America for  a determination of Mr Muller’s  eligibility for surrender pursuant to s 24 of the Extradition Act 1999.

[12]     On 20 July 2006 the request for surrender by the United States of America and  supporting  documents  were  received  through  diplomatic  channels  by  the Ministry of Foreign Affairs and Trade and forwarded to the Minister of Justice the same day.

[13]     By notice dated 24 July 2006, received by the Court on 28 July 2006, the Minister of Justice, the Honourable Mark Burton, gave notice to the Court in compliance with s 23(4) of the Extradition Act 1999 stating that a request for the surrender of Mr Muller had been transmitted to him pursuant to s 18 of that Act. The matter came before Judge Kiernan in the District Court on 2 November 2006. After hearing from the parties and considering the evidence adduced Judge Kiernan determined that Mr Muller, the appellant, was eligible for surrender pursuant to s 24 of the Extradition Act.

[14]     It is from that determination the appellant Mr Muller appeals.  The appeal is by way of case stated.  The question for the Court on the case is whether there is a time prescribed in arts X an XI of the Extradition Treaty in force between New Zealand and the United States of America by which the Court must receive the Minister’s notice under s 23(4) of the Extradition Act 1999.

Relevant statutory provisions

[15]     The  relevant  statutory  provisions  are  found  in  ss  18,  23  and  24  of  the

Extradition Act.  Those sections are set out below.

18       Request for surrender

(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.

(3)      The request must be accompanied by duly authenticated supporting documents.

(4)      In this section, supporting documents, in relation to an extradition offence, means,—

(a)       If  the  offence  is  an  offence  of  which  the  person  is accused,—

(i)        a warrant for the arrest of the person for the offence issued in the extradition country by a court or a Judge or other   person   having   authority   under   the   law   of   the extradition country to issue it; or]

(ii)      A copy of such a warrant:

(b)       If the offence is an offence of which the person has been convicted, such documents as provide evidence of—

(i)        The conviction; and

(ii)      The sentence imposed or the intention to impose a sentence (where relevant); and

(iii)     The extent to which a sentence imposed has not been carried out (where relevant):

(c)In the case of any offence, a written deposition setting out— (i)     A  description  of,  and  the  penalty  applicable  in

respect of, the offence; and

(ii)      The conduct constituting the offence.

23       Procedure following arrest

(1)       A person arrested on a warrant issued after a request under section

19 or issued under section 20 must, unless sooner discharged, be brought before a court as soon as possible.

(2)       The person—

(a)       Is not bailable as of right; and

(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 subsections (1) to (3) of section 31 of the Bail Act 2000 (as applied by section 49 of that Act).]

(4)       If the person has been arrested on a provisional arrest warrant issued under section 20, the following provisions apply:

(a)       The hearing of the proceedings must not proceed until the court receives from the Minister a notice in writing stating that a request for the surrender of the person has been transmitted to the Minister under section 18:

(b)      Pending  the  receipt  of  the  notice  from  the  Minister,  the proceedings may from time to time be adjourned:

(c)       If the court does not receive the notice—

(i)        Within the time prescribed in an extradition treaty that is in force between the extradition country and New Zealand; or

(ii)      If no time is prescribed in a treaty, or no treaty is in force, within such reasonable time as the court may fix,—

the court must discharge the person:

(d)       The court may from time to time, in its discretion, extend any time fixed by it under paragraph (c)(ii).

24       Determination of eligibility for surrender

(1)       Subject to section 23(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.

(2)       Subject to subsections (3) and (4), the person is eligible for surrender in relation to an extradition offence for which surrender is sought if—

(a)      the supporting documents (as described in section 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.

(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)       [except  in  relation  to  a  matter  referred  to  in  section

30(2)(ab),] 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)       Subsections (3) and (4) are subject to section 105.

(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 minor in nature,—

the court may adjourn the hearing for such period as it considers reasonable to allow the deficiency or deficiencies to be remedied.

[16]     In addition there is in the present case an extradition treaty between New Zealand and the United States of America.  The relevant provisions of the extradition treaty for today’s hearing are arts X and XI.  They read as follows:

The request for extradition shall be made through the diplomatic channel.

The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting Party including the law defining the offence, the law prescribing the punishment for the offence, and the law relating to the limitation of the legal proceedings.

…

When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence passed against him in the territory of the requesting Party, by a statement showing how much of the sentence has not been served, and by evidence proving that the person requested is the person to whom the sentence refers.

The warrant of arrest and deposition or other evidence, given under oath, and the  judicial  documents  establishing  the  existence  of  the  conviction,  or certified copies of these documents, shall be admitted in evidence in the examination of the request for extradition when, in the case of a request emanating from New Zealand they bear the signature or are accompanied by the attestation of a judge, magistrate or other official or are authenticated by the certificate of the Attorney General or Solicitor General and, in any case, are certified by the principal diplomatic or consular officer of the United States in New Zealand, or when, in the case of a request emanating from the United States, in the case of a warrant it is signed and in the case of other documents they are certified by a judge, magistrate or official of the United States, and, in every case, they are sealed by the official seal of the Department of State.

ARTICLE XI

In case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel.  The application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the requested Party.

On receipt of such an application the requested Party shall take the necessary steps to ensure the arrest of the person claimed.

A person arrested upon such an application shall be set at liberty upon the expiration  of  45  days  from  the  date  of  his  arrest  if  a  request  for  his extradition accompanied by the documents specified in Article X shall not have  been  received.     However,  this  stipulation  shall  not  prevent  the

institution of proceedings with a view to extraditing the person sought if the request is subsequently received.

Appellant’s case

[17]     It was the appellant’s argument in the District Court and it is the argument in this Court that the time for the Minister to issue the notice required by s 23(4) was the 45 day period referred to in art XI and accordingly the notice should have been received by the Court by 21 July 2006.  As the notice was not received by the Court until 28 July 2006 it is the appellant’s contention that the notice was out of time and the Court was obliged to discharge him from custody.

[18]     Mr  Muller  put  that  submission  a  number  of  different  ways.    He  noted correctly that 45 days after the day he was arrested on 6 June expired on July 21st. He submitted that he should have been released on that day.  He submitted that on

21 July s 23(4)(a) of the Extradition Act applied and was breached when he was not released.   He says that he was illegally held at Mount Eden after that date.   Mr Muller submitted that if his then counsel had filed an application for habeas corpus he would have been freed from custody.   He says he was held in limbo after that time.  He suggested that the matter should be adjourned or returned to the District Court so that the Minister could be required to come and give evidence as to when he received the papers.  Finally he noted that he wished to vacate the guilty plea which forms the basis of the request for assistance and surrender.

[19]     It  is  common  ground  that  the  appellant  Mr  Muller  was  arrested  on  a provisional arrest warrant.  The provisions of s 23(4) of the Extradition Act apply, namely:

•   The hearing of the proceeding must not proceed until the Court receives from the Minister a notice in writing stating that a request for the surrender of the person had been transmitted to the Minister;

•   Pending receipt of the notice the Court may adjourn the proceedings from time to time;

•   If  the  Court  does  not  receive  the  notice  within  the  time  prescribed  in  the extradition treaty, or, if no time is prescribed in the treaty, within such reasonable times the Court may fix, then the Court must discharge the person.

[20]     Section 23(4)(d) is also relevant to determination of this issue.   It provides that the Court may from time to time in its discretion extend any time fixed by it.

[21]     Put shortly, Mr Muller’s contention is that the 45 days referred to in art XI is a time prescribed in an extradition treaty for receipt of the notice and as that notice was not received within 45 days then the Court should have discharged him.

[22]     A similar issue was raised and considered by this Court in Poon v Police [2000] 2 NZLR 86. In that case Baragwanath J had occasion to consider the extradition treaty between New Zealand and Hong Kong. The relevant provisions of the treaty were for present purposes in similar terms to the relevant provisions of the treaty between New Zealand and the United States to the extent that it provided a definite period of time, in that case 60 days, within which “the request for surrender and supporting documents” had to be received. That can be contrasted with the 45 day time in this case. Baragwanath J held that the 60 day time period did not apply to the written notice from the Minister to the Court provided for under s 23(4).

[84]    … The recipient of “the request for surrender and supporting documents” under art 12(4) is not the Court but (in terms of s 18) … the Minister of Justice. What the Court receives under s 23(4)(a) is the written notice from the Minister of Justice stating that a request for the surrender of the person has been transmitted to the Minister.

[23]     In the present case the Minister is the contemplated recipient under art XI. Because it is the Court which is the recipient of the notice under s 23(4)(a) art XI can have no application to the question of when the Court must receive the notice from the Minister.

[24]     Baragwanath J concluded that the extradition treaty before him contained no prescription  of  time  for  the  Court’s  receipt  of  the  Minister’s  notice  and  so s 23(4)(c)(i) had no application.   In the circumstances s 23(4)(c)(ii) required the Court to fix a reasonable period of time for receipt of the notice.

[25]     Baragwanath J’s reasoning is directly applicable to the present case.   The documents referred to in art X are supporting documents within the meaning of s 18(3) and (4).   While the documents listed in art X to some degree supplement those listed in s 18(4) their purpose is still to support the request for extradition so they must surely accompany the request as provided for in s 18(3).  As such both the request and the supporting documents must be transmitted to the Minister pursuant to  s  18(1).    It  is  the  Minister  and  not  the  Court  that  is  the  recipient  of  these documents.  The time limit prescribed by art XI only relates to the receipt of those documents by the Minister.  It does not govern or relate to the receipt of notice by the Court.  Article X only lists those documents to be received by the Minister, not by the Court.

[26]     The purpose of similar extradition legislation and treaties was considered by the House of Lords in the case of Government of the Federal Republic of Germany v Sotiriadis [1975] AC 1. At pp 25-26 Lord Diplock stated:

The purpose of this provision is clear. A person arrested on a provisional warrant is  not  at  that stage  subject  to  extradition  at  all  and  may  never become so. He becomes subject to extradition only when a requisition for his surrender has been received by the Secretary of State. Although the provisional  warrant  charges  him  with  an  offence  committed  abroad  the charge is as yet inchoate. It is not yet the subject of the judicial hearing for which the Act provides. There may never be a requisition for his surrender or, if there is, it may not be for the same crime as that with which the provisional warrant charges him or it may be for other crimes as well. He ought not to be kept in custodial limbo indefinitely, entitled neither to a hearing of the case against him nor to be set at liberty. So the magistrate is required to fix a date by which either those charges which alone can be the subject matter of the hearing must be formulated or the prisoner be discharged.

[27]     Because s 23(4)(c)(i) did not apply in the present case, s 23(4)(c)(ii) applied. The Court should have fixed a reasonable time for receipt of the notice.   In the present case Mr Muller was before the District Court on 21 July 2006 when he was further remanded in custody until 2 August 2006.   By the appearance on 21 July Mr Muller had co-incidentally been in custody for 45 days.  Given there was no time period prescribed  then  the  Court  could  have,  and  perhaps  should  have,  fixed  a reasonable time under s 23(4)(c)(ii) for the receipt of the notice from the Minister. However, by the time the appellant was before the Court again on 2 August, some 12 days later, the notice had been received.   Baragwanath J considered the effect of

failure to expressly fix a time for receipt of the notice in the Poon decision as well. Baragwanath J considered that the time period in the treaty might be a good starting point for what may be a reasonable time in the circumstances.  He considered that it was highly improbable a District Court Judge would have declined to extend the time until a date the notice was eventually filed in that case which was some 27 days after the 60 day time period lapsed.  Thus he held there was no basis for the grant of the Bill of Rights’ relief on the grounds of arbitrary detention.  The position for the respondent in the present case is even stronger.  The notice was received a matter of days outside the 45 day period referred to in the treaty for the provision of the supporting documents, on my calculation seven days outside.

Result

[28]     The  short  answer  to  the  case  stated  then  must  be  no,  there  is  no  time prescribed in arts X and XI of the Extradition Treaty in force between New Zealand and the United States of America by which the Court must receive the Minister’s notice under s 23(4) of the Extradition Act 1999.  The question is answered and the

appeal dismissed on that basis.  The decision of the District Court stands.

Venning J