Smith v Police

[2014] NZHC 1577

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-60 [2014] NZHC 1577

IN THE MATTER

of an appeal from a determination of the

District Court at Hamilton

BETWEEN

ANTONY SMITH Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 July 2014
Counsel:	M D Talbot for Appellant L Dunn for Crown
Judgment:	7 July 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 7 July 2014

at 1.45 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Talbot Law Limited, Hamilton for Appellant

Crown Solicitors Office, Hamilton for Respondent

SMITH v NEW ZEALAND POLICE [2014] NZHC 1577 [7 July 2014]

Introduction

[1]      This is an appeal by way of case stated following a decision of Judge Thomas in the District Court on 24 October 2013, in which he found the appellant to be eligible for surrender to the United Kingdom.

[2]      By way of background, in March 2013, New Zealand authorities received a request  from  the  United  Kingdom  for  the  extradition  of  the  appellant  to  the United Kingdom   in   connection   with   alleged   sexual   offending   against   five complainants.   Four of the complainants are nieces of the appellant’s former wife and the fifth is the daughter of a family friend of the appellant’s former wife.  The former wife and all complainants live in the United Kingdom.   The request was accompanied by supporting affidavits from Detective Constable Claire Jennings of West Yorkshire Police, the officer in charge of the investigation; and from Ms Alison Riley, a barrister and specialist extradition prosecutor with the Crown Prosecution Service of England and Wales.

[3]      On 21 May 2013, New Zealand Police applied to the District Court for an endorsement of the arrest warrant that had been issued in the United Kingdom.

[4]      On 23 May 2013, Judge Thomas in the District Court endorsed the arrest warrant pursuant to s 41 of the Extradition Act 1999 (the Act), thus authorising its execution in New Zealand.

[5]      On 6 June 2013, the appellant was arrested at his home address in Gordonton. While at the Hamilton Police Station, he spoke with Detective Loughrin of the Hamilton Criminal Investigation Branch and acknowledged his awareness of the allegations that had been made by one of the complainants and that he had been interviewed by police in the United Kingdom over those allegations but was of the belief he had been cleared of any charges.  The appellant further confirmed that he knew the four other complainants referred to in the extradition documentation, and that they are the nieces of his former wife.  He also acknowledged that he and his former wife have two daughters named Megan and Mollie.

[6]      Following his appearance in the District Court and the endorsement of the warrant  by  Judge  Thomas,  the  appellant  was  bailed  to  his  home  address  in Gordonton.

[7]      It  is  unnecessary  to  document  the  next  steps  in  the  proceedings  in

New Zealand except to say that these were expeditiously undertaken.

[8]      On 16 October 2013, New Zealand Police applied to the District Court for an order that the appellant was eligible for surrender to the United Kingdom.   The application came back before Judge Thomas.  It was opposed by the appellant, who disputed the validity of the warrant issued in the United Kingdom on the grounds that he was not the person named in the warrant and on account of delay in the United Kingdom in prosecuting the request for his extradition.

The District Court judgment

[9]      There  is  no  issue  that  the  offences  alleged  against  the  appellant  are extraditable offences; or that the warrant of arrest issued in the United Kingdom was lawfully issued.  The primary argument advanced before Judge Thomas was whether the appellant was the person named in the warrant.

[10]     The aspects which the appellant contended cast doubt on his identification as the person named in the warrant, were a misspelling of his  first name and the incorrect statement of his month of birth.

[11]     The correct details are as recorded in his passport.  The warrant as issued was in the name of “Anthony Smith” and his date of birth stated as “8 February 1970”. The appellant’s name is in fact correctly spelt “Antony Smith” and his date of birth is “8 March 1970”.

[12]     However, having regard to the supporting information and documentation filed by the United Kingdom  in  support  of the application,  Judge Thomas  was satisfied that the appellant was in fact the person who was named in the warrant and accused of having committed the offences alleged.  The facts relied on by the Judge in reaching his conclusion were as follows:

(a)      In her affidavit, Detective Jennings, whilst variously referring to the person in respect of whom the warrant was issued as “Antony” and “Anthony” was clearly, from the context, describing the same person.

(b)A description  of  the  appellant’s  physical  appearance  in  Detective Jennings’ affidavit and given to her by the appellant’s former wife was accurate in all of its features save for an overstatement of his height.

(c)      A description of a distinctive tattoo on the appellant’s arm,  again provided by the appellant’s former wife, depicting a skull and grim reaper with the words “Mandy” and “Megan” in a scroll, has a clear correlation with a tattoo on the appellant’s arm, save for the fact that the names appearing in the scroll are “Mollie” and “Megan”.   As noted, the names of the appellant’s two children with his former wife are Mollie and Megan.   Obviously the name of one child was incorrectly transcribed by Detective Jennings in her affidavit.

(d)There  was  and  is  no  doubt  that  the  appellant’s  passport,  in  the possession of New Zealand Police, is his passport, (albeit now expired).  The appellant also accepted that a photograph annexed to Detective  Jennings’ affidavit  was  the  same  photograph  as  in  his passport.    Significantly, the appellant’s former wife positively identified him to Detective Jennings as her ex-husband Antony Smith from that same photograph, when she was shown it by the Detective.

(e)      In his interview with Detective Loughrin at Hamilton Police Station following his arrest in New Zealand, the appellant made the following admissions:

(i)that he was aware of allegations of sexual offending by one of the complainants, in relation to which he had been interviewed by police before he left the United Kingdom in 2004;

(ii)he   acknowledged    his    relationship    to   the   other   four complainants;

(iii)     he confirmed his marriage to his former wife in the United

Kingdom;

(iv)he confirmed that he and his former wife have two daughters named Mollie and Megan;

(v)he  confirmed  that  he  was  the  person  in  the  photograph annexed to Detective Jennings’ affidavit and from which he had been identified by his former wife.

[13]     Further minor discrepancies raised before Judge Thomas and in this Court by the appellant, as casting doubt on his identification as the person named in the extradition warrant, were a typographical error in Ms Riley’s affidavit, where in one instance she refers to the Sexual Offences Act 1984 rather than the Sexual Offences Act 1956.  All other references in her affidavit are correctly to the Sexual Offences Act 1956.   The other minor discrepancy is that Detective Jennings stated she had applied for and obtained the warrant for his arrest on 11 May 2011, whereas the warrant is actually dated 10 May 2011.  Neither of these typographical errors are of the slightest moment.

[14]     The central challenge was whether the District Court was confined to the face of the warrant in determining whether the appellant was the person named in it and in respect of whom it had been issued, notwithstanding the error in the spelling of his first name and the incorrect month of his birth.

[15]     In reaching his conclusion, Judge Thomas recorded that the Crown did not dispute there was a spelling error in the appellant’s first name and an incorrect statement of his month of birth on the face of the warrant and further recorded the Crown accepted the Court had no power to amend these defects on the face of the warrant.   However, the Judge dismissed the appellant’s assertion that the Court was unable to satisfy itself that the warrant was nevertheless issued for him on the basis

of  the  further  information  accompanying  the  United  Kingdom’s  request.     At paragraphs [10] to [15] of his decision, the Judge found as follows:

[10]     The Crown takes no issue with the respondent’s claim that his first name has been misspelt and an incorrect date of birth is recorded on the face of the warrant (the respondent deposed to that effect in his affidavit, sworn

17 September 2013). The Crown also accepts that the Court has no power to amend the warrant.

[11]     However,  the  Crown  argues  that,  based  on  other  information contained in the request and before the Court, I can be satisfied that the warrant has been issued for the respondent, notwithstanding any errors in the spelling of his name or date of birth.

[12]      The respondent argues that the Court cannot go beyond the face of the warrant in establishing whether or not it has been issued for the respondent.  If that were the case, however, the police would not be able to ever answer a claim by a person named in any arrest warrant that they are not the person named in the warrant.  The respondent was unable to point to any authority that would prevent this Court from looking at the sworn affidavit evidence filed as part of the United Kingdom request to test the respondent’s claim.   There is nothing in the Extradition Act which would appear to prevent such an enquiry.   It would also appear inconsistent with s 42(1)(a) of the Act, which provides that the Court has the same jurisdiction and powers as if the proceedings were in respect of a Category 2 offence.

[13]     The  respondent  argues  that  it  is  specifically  because  of  the accelerated extradition process under Part IV of the Extradition Act that the Court must be satisfied that the warrant relates to the respondent.  That is undoubtedly correct, and is of course prescribed by s 45.   The purpose however of Part IV is to recognise that certain jurisdictions operate in a way so  closely  aligned  with  New  Zealand  that  the  wider  examination  of extradition requests more usually required should not apply.   At present those jurisdictions are limited to the United Kingdom, the Pitcairn Islands and Australia.   It was Parliament’s intention in enacting Part IV to allow criminal proceedings to be determined by those jurisdictions with as little hindrance as possible from New Zealand.

[14]     English and New Zealand Courts have held that extradition statutes should be liberally interpreted in order to facilitate extradition (In Re Ismail [1999] 1 AC 320 (HC), cited with approval in Mailley v New Zealand Police (HC  Auckland,   Ellis   J,   12  April   2011).      Courts   have   endorsed   a

“cosmopolitan approach” to assessing extradition requirements, the focus

being on substance rather than form (In Re Ismail, followed in Mailley).

[15]      That is not to say that the safeguards against extradition that remain under  Park  IV must  not be  carefully applied.    However,  I consider the respondent’s interpretation of s 45(2)(a) as preventing any enquiry beyond the face of the warrant too strict, given the purpose of Part IV.

[16]     On the basis of all the accompanying information, as set out in [12], the Judge was satisfied the appellant was the person named in the warrant and issued an order for his surrender to the United Kingdom.

[17]     In relation to the second ground of opposition: viz, whether the amount of time that had passed, since the file was sent by United Kingdom Police to the Crown Prosecution Service, rendered the issue of an order for the appellant’s surrender unjust or oppressive, the Judge found nothing in the material before him to demonstrate that the appellant’s surrender would be either unjust or oppressive.  In reaching this view, the Judge observed that it was understandable for the appellant to feel that the United Kingdom authorities should have been able to progress matters more quickly, and acknowledged that the appellant had settled into a new life in New Zealand in the intervening period and that his situation was causing him a degree of psychological stress.  However, the Judge found the test under s 8(1)(c) of the Extradition Act 1999 to not be made out.

[18]     Accordingly, the Judge concluded:

Conclusion

[51]     I am satisfied that:

(a)   A warrant for the respondent’s arrest endorsed under s 41(1) has

been produced;

(b)   The  respondent  is  an  extraditable  person  in  relation  to  the extradition country; and

(c)   The   offences   are   extradition   offences   in   relation   to   the extradition country.

[52]     The  respondent  has  failed  to  satisfy  me  that  any  discretionary restriction on his surrender under s 8 applies.

[53]     The  respondent  is  eligible  for  surrender  in  respect  of  all  of  the offences for which surrender is sought.

Case stated on appeal

[19]     In  the  case  stated  on  appeal,  Judge  Thomas  recorded  the  appellant’s opposition to the issue of an order for his surrender to the United Kingdom as having been advanced on the following two grounds:

(a)       The warrant relied on in, and annexed to, the request, misspelt the respondent’s name and stated a date of birth that is not that of the respondent.  The respondent argued that as it was not his name or date of birth on the warrant, and as the Court has no power to amend the  warrant  to  correct  any  deficiencies  (not  disputed),  the  Court could not go on and determine whether or not the respondent is an extraditable person as required by s 45(2)(a) of the Act;

(b)       That the delay in prosecuting the request, including a significant period of time where there is no explanation for the delay, makes surrender unjust or oppressive.

[20]     The  Judge  then  traversed  the  essence  of  his  analysis  and  findings  and concluded by stating the following questions for the opinion of this Court:

Was I right to find the [appellant] was the person named in the warrant?

Was I right to find that the delay in prosecuting the request, including the period of delay that is unexplained, is not a circumstances making it unjust or oppressive to determine the [appellant] is eligible for surrender.

Discussion

[21]     Both questions can be dealt with quite shortly.

[22]     In relation to the first, although there is no case law directly on point on the particular facts in this case, there is nothing in the legislation itself to preclude the approach taken by the District Court Judge.   While s 45(6) of the Extradition Act

1999 provides a broad discretion for the Court to adjourn a hearing for a reasonable period to allow a deficiency or deficiencies of a minor nature that are of relevance to the proceedings to be remedied, that is not an option in the present case.  Mr Talbot acknowledged that the warrant for arrest of the appellant issued in the United Kingdom was lawfully issued and the New Zealand courts cannot of their own volition simply remedy deficiencies on the face of a warrant issued by another jurisdiction.  The whole process would need to be recommenced if a fresh warrant to arrest were to be issued by the United Kingdom.

[23]     As  noted,  however,  there  is  nothing  in  the  legislation  to  preclude  a New Zealand Court from reaching its own decision on the warrant on the basis of all of the information before the Court, unless the defects on its face are of such a nature

as to invite doubt that the person named in the warrant is the person before the Court and those defects are unable to be remedied by the supporting documentation.

[24]     In this case, the defects on the face of the warrant are minor and can be characterised as mere typographical errors.  It is open to the Court to have regard to the supporting information and documentation filed with the warrant in order to satisfy itself that the defects are not material and the warrant has been properly endorsed.  The supporting information and documentation that is available establish beyond  reasonable  doubt  that  the  appellant  is  indeed  the  person  named  in  the warrant.

[25]     Mr Talbot contended that the first name “Antony” and the name “Anthony” are not the same name.   In my view they are not different names but simply a misspelling of the same name.

[26]     In relation to the wrong date of birth in the warrant, this is only in respect of the month of birth and not the whole date of birth.  The day and year are correctly stated.

[27]     Taking into account the overwhelming nature of the supporting evidence, particularly that obtained during the interview of the appellant’s former wife by Detective Jennings, any skerrick of doubt arising from the typographical errors on the face of the warrant must evaporate.  His former wife’s evidence about significant and singular factors was in any event confirmed by the appellant himself during his interview with Detective Loughrin.

[28]     The misdescription of the appellant’s height in Detective Jennings’ affidavit and the mistake in the name of one of his children, as depicted in the tattoo on his arm, are the result of Detective Jennings’ transcription of her interview notes with the former wife and as such do not constitute material discrepancies.

[29]     The provisions of s 41 of the Extradition Act 1999 provide for the issue of a provisional warrant for the arrest of a person for whom a warrant of arrest has been issued  in  an  extradition  country,  “upon  being  satisfied  that  on  the  basis  of  the

information present, … that the person is an extraditable person in relation to the extradition country and the offence for which the person is sought is an extradition offence …”.

[30]     When  the  initial  application  for  endorsement  of  the  arrest  warrant  came before Judge Thomas on 23 May 2013, the Judge had to satisfy himself of those evidential requirements as stipulated in s 41 and did so.   Nothing in the section indicates that a Judge undertaking such an endorsement exercise is precluded from satisfying him or herself of those evidential requirements by having regard to all of the information before the Court.   The warrant alone and of itself would be insufficient  to  fulfil  those  evidential  requirements.     It  is  therefore  from  the supporting information and evidence filed that the Judge is able to be satisfied or not of the requirements of s 41(1)(a) and (b).

[31]     The same requirements, as set out in s 41(1), are expressly incorporated in s 45.1   Thus, the exercise under s 45 is not confined simply to an examination of the warrant on its face but also requires the Judge to be satisfied of the  evidential requirements of s 41(1).

[32]     I am satisfied that the defects on the face of the warrant in this case are of no substance when regard is had to all of the supporting information and documentation filed and that Judge Thomas correctly had regard to the matters of relevance contained in that supporting information and documentation.

[33]     It follows that the answer to the first question is in the affirmative.

[34]    Turning then to the second question, that must also be answered in the affirmative.

[35]     The restrictions on surrender provided for in s 8 of the Act are discretionary in nature.

1      Section 45(2)(a).

[36]     The particular provision on which the appellant relied is s 8(1)(c).   This provides that a discretionary restriction on surrender will exist if, because of the amount of time that has passed since the offence is alleged to have been committed and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.

[37]      Counsel both advanced some argument in relation to whether the concepts of injustice and oppression under s 8(1)(c) include the ability of the subject person to obtain a fair trial in the country to which it is proposed they be surrendered.

[38]     On the basis of the accelerated extradition process under Part IV of the Act, New  Zealand  has  recognised  that  the  United  Kingdom  is  a  jurisdiction  which operates in a manner closely aligned with New Zealand.  A wider examination of an extradition request from the United Kingdom therefore does not require a wider examination  and  criminal  proceedings  within  the  United  Kingdom  should  be hindered as little as possible by the New Zealand processes.  It is to be assumed the appellant will be accorded all due process in the United Kingdom upon his being surrendered there and it is unnecessary for the New Zealand Courts to inquire further about that.  All that is necessary is for the New Zealand Court to have received a validly issued warrant for the arrest of the appellant, which it has.

[39]     The material delay in this case was a four-year period between the initial decision to prosecute and the obtaining of a warrant and the request for extradition of the appellant from New Zealand.  As Judge Thomas recorded, that period of delay is unexplained.   However, the relevant question is whether that period of delay constitutes a circumstance making it unjust or oppressive to order the respondent be eligible for surrender.

[40]     The basis upon which the Judge found there was nothing detrimental, unjust or oppressive on the information before him, that required the exercise of discretion under s 8(1)(c), is set out in detail in his judgment.  I concur entirely with the Judge’s analysis and finding on this aspect.

Conclusion

[41]     The answer to both questions stated for the opinion of this Court is “yes”.

Goddard J