R v Bujak - [2007] NZCA 347

IN THE COURT OF APPEAL OF NEW ZEALAND
CA185/07
[2007] NZCA 347
THE QUEEN
v
SLAWOMIR RYSZARD BUJAK
Hearing:1 August 2007

Court:William Young P, Hammond and Robertson JJ
Counsel:G M Illingworth QC for Appellant

M F Laracy and K E Salmond for Crown

Judgment:15 August 2007 at 3 pm

JUDGMENT OF THE COURT

A        The appeal is allowed and the proceeding is remitted to the High Court.
BThe orders made in the High Court are varied as follows:
·     The order for registration made in the High Court will stand.
·     The appellant will have seven days from the date of delivery of this judgment to apply to set that order aside.
·     The High Court is to give timetable directions for the hearing of that application, if one is made, but in the circumstances of this case, urgency should be accorded to the setting aside application.
·     It will be open to the parties to address whether the particular Polish foreign order is or is not within the definition in the New Zealand Mutual Assistance in Criminal Matters Act 1992. Nothing we have said in this judgment is intended to preclude any other relevant authorities or affidavit material being placed before the High Court.
CIn this Court the appellant will have costs of $6,000 and usual disbursements.

REASONS OF THE COURT
(Given by Hammond J)
Table of Contents

Para No

INTRODUCTION  [2]
BACKGROUND  [4]
New Zealand’s mutual assistance regime  [11]
The issues on the appeal  [25]
The due process concerns  [26]
A registrable order?  [37]
Conclusion  [51]
Introduction
[1]       The broad issue on this appeal is whether a Polish restraining order was properly registered in New Zealand under the Mutual Assistance in Criminal Matters Act 1992 (the Mutual Assistance Act).
[2]       Mr Bujak appeals against the following order of the High Court at Wellington, made ex parte after a hearing before Clifford J (CIV-2007-485-522 2 April 2007):
UPON READING the application for an order for registration of a foreign restraining order, and the affidavit of Kate Elizabeth Salmond filed in support, THIS COURT ORDERS THAT the foreign restraining order issued by the Regional Court in Wloszczowa, 2^nd Penal Department, Kiecle, Republic of Poland against the respondent on 26 June 2006, be registered in New Zealand.

[3]       There is no reasoned decision; the Court Registrar completed the order after the hearing.
Background
[4]       The relevant Polish authorities have brought various charges against Mr Bujak for the misappropriation of funds, vehicles, and other property, in relation to a company called BUPOL. According to the Polish District Prosecutor, the most serious offence Mr Bujak faces carries a maximum penalty of 10 years imprisonment. Apparently, he also faces a potential fine of up to 720,000 PLN in punitive damages and 3,877,272.77 PLN in “repair of damages”. The latter appears to refer to compensatory damages for victims.
[5]       Articles 291 to 295 of the Polish Code of Penal Procedure authorise the freezing of any property of a person charged with an offence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bujak

Details

AGLC: R v Bujak [2007] NZCA 347
Case: [2007] NZCA 347
Decision Date: 15 August 2007

CaseChat Overview and Summary

The appeal in R v Bujak involved the question of whether a Polish restraining order was properly registered in New Zealand under the Mutual Assistance in Criminal Matters Act 1992. The appeal was brought by Mr. Bujak, who contended that the High Court had erred in proceeding ex parte and in registering a foreign restraining order that did not fit within the statutory definition of such an order under New Zealand law. The Court of Appeal considered both procedural and substantive issues. On the procedural front, the Court found that the High Court should have allowed Mr. Bujak to be heard before making the order, as the ex parte process did not observe due process and natural justice. The Court of Appeal noted that the High Court Rules require judges to consider whether an ex parte application can be properly dealt with without notice, which was not done in this instance. On the substantive issue, the Court examined whether the Polish order qualified as a "foreign restraining order" under the New Zealand statute. The Court held that the Polish order, which imposed a charge on property in anticipation of a potential fine or damages obligation, did not align with the New Zealand definition of a restraining order, which requires a connection between the property and the alleged offence. The Court of Appeal allowed the appeal, varied the High Court’s order, and remitted the matter to the High Court for further consideration. Mr. Bujak was given seven days to apply to set aside the registration order, and the Court emphasized that the High Court should address whether the Polish order fits within the statutory definition. The appellant was awarded costs of $6,000 in the Court of Appeal.

Orders