Police v Radhi

[2013] NZHC 1099

ORDER PROHIBITING PUBLICATION OF ANY DETAIL IDENTIFYING MR RADHI'S WIFE OR HIS CHILDREN, OR OF ANY INFORMATION WHICH MIGHT LEAD TO THEM BEING IDENTIFIED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-201 [2013] NZHC 1099

BETWEEN  NEW ZEALAND POLICE Applicant

ANDMAYTHEM KAMIL RADHI (ALSO KNOWN AS MAYTHAM KAMIL RADHI)

Respondent

Hearing:         14 May 2013

Appearances: J C Gordon QC and W N Fotherby for Applicant

R P Chambers and S Withers for Respondent

Judgment:      14 May 2013

ORAL JUDGMENT OF WYLIE J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

R P Chambers, PO Box 941, Auckland

NEW ZEALAND POLICE V RADHI HC AK CRI-2012-404-201 [14 May 2013]

Introduction

[1]      On 11 February 2013, I issued a reserved decision in respect of a case stated from Judge J C Moses sitting in the District Court at Auckland.

[2]      The  District  Court  had  found  that  the  respondent,  Mr  Radhi,  was  an extraditable person as defined in s 3 of the Extradition Act 1999, and eligible for surrender to Australia.

[3]      The Commonwealth  Police in Australia  are seeking  the surrender of  Mr Radhi.   They allege that he was involved in facilitating the proposed entry into Australia of a group of five or more people to whom s 42(1) of the Migration Act

1958 (Commonwealth) applied and that he did so reckless as to whether those people had a lawful right to come into Australia.  If proved, this is an offence pursuant to s 232A of the Migration Act 1958 (Commonwealth).

[4]      In  my  reserved  judgment1   I  held  that  the  District  Court  had  erred  in concluding both that Mr Radhi was an extraditable person and that he was eligible for surrender.  I accordingly discharged him under s 73(1)(a) of the Act.

[5]      On 28 February 2013, the New Zealand Police filed an application for leave to appeal my decision on questions of law.  The police submit that leave should be granted in respect of three separate questions of law, namely:

(a)       Was there a requirement of “arrival” in New Zealand for an offence to

be committed under s 142(fa) of the Immigration Act 1987;

(b)Was it an offence in New Zealand to attempt to commit the offence set out in s 142(fa) of the Immigration Act;  and

(c)       Did the multiplier provision in s 144(1)(A) of the Immigration Act

“for each person in respect of whom the offence was committed”

apply to both the term of imprisonment and the fine set out in that section, or only to the fine?

[6]      The respondent, Mr Radhi, has filed a notice of opposition.

Appeal provisions

[7]      Section 69 of the Extradition Act applies s 144 of the Summary Proceedings Act 1957 to extradition appeals from the High Court to the Court of Appeal.  The relevant provision is s 144(2) of the Summary Proceedings Act.   It provides as follows:

144  Appeal to Court of 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.

[8]      The applicable principles have been discussed by the Courts on a number of occasions and notably by the Court of Appeal in R v Slater:2

... Thus, there must be: (i) a question of law; (ii) the question must be one which, by reason of its general and public importance  or for  any other reason, ought to be submitted to the Court of Appeal; and (iii) the Court must be of the opinion that it ought to be so submitted. It is probably neither necessary  nor  desirable,  however,  to  break  the  requirements  of  the subsection down in this way. Such an analysis merely serves to highlight the essential elements which must be present before leave to appeal can be granted. It is sufficient to pose the statutory question: is there a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

… Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of

law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Submissions

[9]      Ms Gordon QC, appearing for the police, submitted that the questions posed in the application should be submitted to the Court of Appeal for further decision. She noted that Mr Radhi is accused in Australia of involvement in alleged offending, which cost a large number of lives.  The Australian authorities wish to put him on trial for this offending.  She acknowledged that the answers to the questions posed are finely balanced and that argument is available on either side.  She submitted that my judgment forecloses on the possibility of Mr Radhi being extradited.  She argued that the questions posed are questions of law, that they pass the threshold in s 144(2) as being of “general or public importance or for any other reason”, and that they are capable of bona fide and serious argument.  She referred in particular to the context – namely extradition, and referred to the judgment of the Court of Appeal in The

United States of America v Dotcom & Ors.3

[10]     Mr Chambers, appearing for Mr Radhi, argued that the application discloses no question of law which by reason of its general public importance, or for any other reason, ought to be submitted to the Court of Appeal.   He noted that the relevant provisions in the Immigration Act are no longer in effect because the Act has been comprehensively amended in recent years.  He argued that, in respect of questions (a) and (c) above, no precedent value can be gained from a further hearing into what are questions of interpretation of defunct legislation.  He submitted that it followed that questions (a) and (c) disclose no matter of general or public importance.   In relation to question (b), he acknowledged that the possibility of wholly extra- territorial inchoate offending raises a question of general or public importance, but he submitted, by reference to the decision of the Court of Appeal in  Clifford v

Commissioner of Inland Revenue,4 that my decision in this regard is “so plainly right

that the applicant should be refused leave to appeal”.

Analysis

[11]     I am satisfied that each of the three questions the police wish to take to the Court of Appeal involves a question of law.   Questions (a) and (c) turn on the interpretation of provisions previously found in the the Immigration Act;  question (b) turns on the interpretation of various provisions contained in the Crimes Act

1961.

[12]     I acknowledge the point made by Mr Chambers that the relevant provisions contained in the Immigration Act are no longer in force, that the sections did not cause any great difficulty while they were in force, and that there is little or no precedent value to be gained from a decision of the Court of Appeal in relation to the meaning  of  the  provisions.    It  does  not,  however  follow  in  my  judgment  that questions (a) and (c) are not of general or public importance.

[13]     The overlay to my reserved judgment was the Extradition Act.  As the Court of Appeal acknowledged in the Dotcom5 case, extradition processes are an important aspect of the comity of nations.  Nations have an interest in ensuring that persons within their jurisdiction who are accused of criminal offences in another State are surrendered in order to answer those allegations in that State.  It is in the interest of all States that crimes acknowledged to be such do not go unpunished.

[14]     In my judgment, this overlay elevates the questions which the Crown wishes to take to the Court of Appeal to questions which do pose issues of general or public importance.

[15]     There are two additional reasons which suggest that it is appropriate to allow leave to appeal in the present case.   First, as I noted in my reserved judgment,6 questions (a) and (c) were not easy to answer.  The issues were finely balanced.  It is clearly the case, as Ms Gordon responsibly acknowledged, that the questions are capable of bona fide and serious argument on both sides.  Secondly, the conclusions that I reached in my reserved judgment differed from those reached by Judge Moses,

an experienced District Court Judge, in a lengthy and closely reasoned reserved decision.

[16]     For these reasons, it is in my view appropriate to grant the police leave to appeal in respect of each of the three questions posed in the application and noted in paragraph [5] above.  Leave is granted accordingly.

[17]     I direct that the police are to file their notice of appeal within ten working days of the date of this judgment.

Wylie J