P v Police HC Auckland CIV 2008-404-2412

[2008] NZHC 887

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-2412

UNDER  The Extradiction Act 1999

BETWEEN   P 

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 June 2008

Appearances: G N Bradford for appellant

D Johnstone for respondent

Judgment:      12 June 2008

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor Auckland

G N Bradford,  [email protected] Auckland

P   V  POLICE HC AK CIV 2008-404-2412  12 June 2008

[1]      Mr P   faces fraud charges in Victoria, Australia.  On 4 April 2008, Judge Aitken ruled in the District Court at Auckland that he was eligible for surrender, pursuant to s 45 of the Extradition Act 1999.   Mr P   appealed against that decision.   In a reserved judgment delivered yesterday, Randerson J dismissed the appeal.

[2]      The effect of that judgment was to render Mr P   vulnerable to surrender to the Australian Police, and to be escorted to Melbourne in order to face the charges laid there.

[3]      Mr Bradford for Mr P   advises he has instructions from Mr P   to seek leave to appeal pursuant to s 144 of the Summary Proceedings Act.   In the meantime, he seeks a stay of the order made in the District Court on 4 April 2008, on the basis that if no stay is granted, the appellant’s appeal rights will be rendered nugatory.   There is no dispute as to the Court’s jurisdiction to grant a stay for surrender.

[4]      Mr Johnstone for the respondent has no instructions from the  Australian Police, who are substantively the respondents, but neither does he raise any formal opposition to the grant of a stay.  I am satisfied a stay is necessary in order to ensure that the appellant’s appeal rights are not destroyed.

[5]      There is however a procedural problem.  I am grateful to Mr Johnstone for raising it for the Court’s consideration.  The combined effect of ss 47 and 57 of the Extradition Act is that unless there is a pending appeal, time commences to run as from the date of the dismissal by Randerson J of the District Court appeal.   The significance of that is that s  57  provides  that  a  person  must  be  surrendered  or conveyed out of New Zealand under a surrender order within two months of the date upon  which  time  commences  to  run.    If  that  does  not  occur,  then  the  person concerned may apply to a Judge of the High Court to be discharged.  Mr Johnstone was quite properly concerned that the effect of the order made in the District Court is not dissipated simply by the effluxion of time, unless careful attention is paid to timing issues in respect of the pending application for leave to appeal.

[6]      I  am  prepared  to  grant  a  stay  of  the  District  Court  order,  and  do  so accordingly.

[7]      But it is on condition that Mr Bradford files in this Court and serves on the respondent by 5 pm on Tuesday next, 17 June, an application for leave to appeal.  If that does not occur then the present order for stay will be automatically discharged. If such an application is filed, the matter will be in the hands of the Judge who hears the application.

[8]      By  reason  of  the  timing  problems  to  which  I  have  referred  above,  the scheduling manager is asked to allocate an early one hour fixture for the hearing of the application for leave.  In my view the application ought to be heard at the latest within 14 days of today’s date.

[9]      The question of further timing will be in the hands of the Judge who hears the application for leave.

C J Allan J