P v Police HC Auckland CIV 2008-404-2412

[2008] NZHC 944

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-2412

UNDER  The Extradition Act 1999

IN THE MATTER OF     of an appeal against an order determining the Appellant eligible for extradition to Melbourne

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 June 2008

Appearances: G N Bradford for Appellant

D G Johnstone for Respondent

Judgment:      19 June 2008

ORAL JUDGMENT OF RANDERSON J Declining Leave to Appeal

Solicitors:           G N Bradford, PO Box 2274, Shortland Street, Auckland

Crown Solicitors, PO Box 2213, Auckland

P V POLICE HC AK CIV 2008-404-2412  19 June 2008

Introduction

[1]      On 11 June 2008 I issued a  reserved judgment dismissing an appeal  by Mr George P   against a District Court decision determining that he was eligible for surrender to Australia to face fraud charges laid in Melbourne.  The central issue on the appeal was the relationship of the Australian prosecutions with another charge pending  in  New  Zealand  against  Mr  P    which  had  been  laid  prior  to  the Victorian proceedings.

[2]      I  upheld  the  decision  of  the  District  Court  Judge  that  there  was  no discretionary restriction on surrender under s 8(2) Extradition Act 1999.  I reached that decision because I was satisfied, as the District Court Judge was, that the offence pending in New Zealand was essentially the same as the criminal charges pending in Australia so far as they related to the complainant Mr Morgan.

[3]      I was however concerned that the charge pending against Mr P   should not be left without resolution while the Australian prosecutions were pursued.  For that reason I made an order for permanent stay of the criminal charge brought against him in New Zealand.   I also determined that even if there had been a discretion available to the District Court Judge in relation to the extradition of Mr P   to Australia, the discretion would not have been exercised in favour of the refusal of extradition.  I did not reach that conclusion in explicit terms but dealt with it at [33] of my decision essentially for the same reasons as the District Court Judge who also concluded that if there was a discretion she would not have exercised it in favour of Mr P  .

[4]      Mr P   now applies for special leave to appeal to the Court of Appeal on points of law.   The application is brought under s 144 Summary Proceedings Act

1957 which provides:

144      Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its  general  or  public  importance  or  for  any  other  reason,  ought  to  be submitted to the Court of Appeal for decision.

(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[5]      The points of law identified in the notice of application are:

Was the Judge wrong to have declined to exercise the discretion in favour of the applicant bearing in mind his rights under the Bill of Rights Act to a trial in New Zealand, particularly as the New Zealand charge was laid prior to the time that application was made for extradition?

And further:

Do the provisions of the Extradition Act 1999 prevail over the right to a trial of a person charged with an offence in New Zealand?   Section 25 Bill of Rights Act 1990.

Appellant’s submissions

[6]      During the course of argument Mr Bradford also signalled that he would wish to include an additional question of law namely, whether I had correctly upheld the District Court Judge’s decision that there was no discretionary restriction available under s 8(2) Extradition Act.

[7]      However, the real focus of Mr Bradford’s argument on behalf of Mr P   relates to the application of s 25(b) New Zealand Bill of Rights Act 1990 which provides for fair trial rights and a prompt trial.  He submits that there is a serious question to be argued which is of general and public importance namely, whether the

right of Mr P   to a prompt hearing of the charge in New Zealand should override the provisions of the Extradition Act.  The submission in the High Court was and remains that the New Zealand charge should be disposed of before the prosecutions are heard in Australia.

[8]      Mr Bradford submitted that there was a lacuna in the legislation because the Extradition Act does not refer explicitly to the impact of s 25 New Zealand Bill of Rights Act in an extradition case such as this where prosecutions are pending on both sides of the Tasman.  He accepted that no argument had been addressed to this Court or the District Court on the application of ss 4, 5 and 6 New Zealand Bill of Rights Act and, for that reason the judgments did not analyse those provisions.

[9]      He referred to the decision of the Court of Appeal in Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 where the Court of Appeal adopted observations of the Privy Council in Minister of Home Affairs v Fisher [1980] AC

319, at 328-329 that the provisions of the New Zealand Bill of Rights Act (in that case s 23(1)(c)) were to be construed generously so as to give individuals the full measure of the fundamental rights and freedoms referred to.

[10]     Finally, Mr Bradford submitted that this was a case of general or public importance  because  there  had  been  no  previous  decision  covering  the  points Mr P    seeks  to  raise  and  because  the  removal  of  an  individual  under  the Extradition Act to an overseas country is a serious matter affecting the liberty of the subject.

Crowns submissions

[11]     For the Crown, Mr Johnston submitted first that there was no issue of law of general or public importance and secondly, that it was not a case that ought to be submitted to the Court of Appeal in terms of s 144, citing in that respect the well- known principles in R v Slater [1997] 1 NZLR 211 at 215.

[12]     Mr Johnstone submitted that if there were questions of law then they should properly be limited to:

a)        Is  there  a  discretionary  restriction   on   surrender   under   s   8(2) Extradition Act in the circumstances of this case?

b)How is s 8(2) to be interpreted in the light of the rights afforded by s 25 New Zealand Bill of Rights Act ?

[13]     Mr Johnstone submitted in particular that it is not a question of whether one Act overrides the other.   Rather, in accordance with the decision of the Supreme Court in R v Hansen [2007] 3 NZLR 1, the issue is one of interpretation in the light of the provisions of ss 4, 5 and 6 of New Zealand Bill of Rights Act.

[14]     Mr   Johnstone   submitted   that   the   resolution   of   that   question   was straightforward in the circumstances of this case.  The specific provisions of s 8(2) clearly overrode the provisions of s 25 New Zealand Bill of Rights Act and there was no room in terms of s 6 for any reading down of the plain provisions of s 8(2).

[15]     Mr Johnstone also submitted that the interpretation of the section, as the District Court Judge found and which was upheld on appeal, was correct.  Finally, Mr Johnstone submitted that the determination of the questions of law if leave were granted, would not avail the intending appellant because it was clear that if there were a discretion it ought to be exercised against Mr P  .

Conclusion

[16]     I have concluded that this is not an appropriate case for leave to appeal to be granted substantially for the reasons submitted by Mr Johnstone.   The meaning of s 8(2) is abundantly clear in my opinion and there is no room for the application of ss 4, 5 and 6 in some way to read down the provisions of that section.  The specific provisions of the Extradition Act are intended to provide that there is no discretion to avoid surrender in extradition proceedings in circumstances such as these unless there is a criminal offence alleged in New Zealand against the person subject to surrender  which  is  different  in  nature  from  the  offences  overseas  for  which extradition is sought.

[17]     Plainly, that is not the case here and even if there were a discretion, I am satisfied that the merits overwhelmingly favour  the  extradition  of  Mr  P    to Melbourne to face the charges there.  As I indicated in the substantive decision, there are  a  number  of  complainants  in  Australia  all  based  in  Victoria  where  the prosecutions are pending.  It has been agreed between the prosecution authorities in Australia and New Zealand that the criminal charges against Mr P   are best determined in Australia.   There is the prospect there may be further charges in respect of other complainants in the state of Victoria and there is nothing to suggest the prosecutions in Victoria will not proceed promptly nor any suggestion Mr P   will receive anything other than a fair trial in Victoria.

[18]     His position in New Zealand is protected by the permanent stay which has been made so that he cannot be proceeded against in respect of the one charge here relating to the complainant Mr Morgan.

Result

[19]     I am therefore satisfied not only that there is no question of law of general or public importance but  also  that  there is no  question  of  law  which  ought  to  be submitted to the Court of Appeal.  Accordingly the application for leave to appeal is dismissed.

[20]     During the course of argument I invited Mr Bradford to indicate whether it was likely special leave would be sought from the Court of Appeal if his application today were declined.  He has indicated that his client does wish to seek special leave.

[21]     In those circumstances I am prepared to extend the stay of the District Court Order which was granted by Allan J on 12 June 2008 but for a strictly limited period. In my view the appellant must proceed with great expedition given the delays which have already occurred in the prosecutions (which are not necessarily attributed to the appellant) and the time restrictions which exist under ss 47 and 57 Extradition Act as identified in [5] of the judgment of Allan J given on 12 June 2008.

[22]     I therefore extend the stay order made by Allan J for a period of 14 days from today to enable Mr P   to endeavour to obtain special leave to appeal from the Court of Appeal.  I appreciate that this is a tight time limit but this is a case which deserves  urgency  so  far  as  that  can  be  accorded  by  the  Court  of  Appeal.    If difficulties  arise  application  can  be  made  to  the  Court  of  Appeal  for  a  further

extension of the stay.

A P Randerson, J Chief High Court Judge