Tamainu v The King
[2023] NZHC 471
•10 March 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-3
[2023] NZHC 471
BETWEEN PAUL JOSEPH TAMAINU
Appellant
AND
THE KING
Respondent
Hearing: 8 March 2023 (via AVL) Appearances:
M W Ryan for Appellant
J M Woodcock for Respondent
Judgment:
10 March 2023
JUDGMENT OF McQUEEN J
[1] This is an appeal by Mr Paul Joseph Tamainu against a decision of Judge Grieg in the New Plymouth District Court determining that Mr Tamainu was eligible for surrender to Australia.1 That decision was delivered on 30 January 2023.
[2] Mr Tamainu appeals on the ground that the Judge breached his right to justice pursuant to s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA). He says that he was not given reasonable notice of the case he was required to meet and was therefore not provided with an opportunity to be properly heard.2 Mr Tamainu asks the Court to remit the matter back to the District Court for rehearing.
1 R v Tamainu [2022] NZDC 2044.
2 During the hearing, counsel for Mr Tamainu also raised as an additional error of law that Judge Greig considered bail was not available to Mr Tamainu. This is not the key matter at issue and I do not address it further in this judgment.
TAMAINU v R [2023] NZHC 471 [10 March 2023]
[3] The Crown opposes the appeal and says that Mr Tamainu has not established that the District Court failed to meet its natural justice obligations. The Crown submits that the appeal should be dismissed, and the decision of the District Court confirmed.
[4]For the reasons below, I am of the view that the appeal should be dismissed.
Background
[5] A warrant for Mr Tamainu’s arrest was issued in Australia on 10 November 2017 (after some administrative issues with warrants issued earlier). That followed his non-appearance in the Perth District Court on 7 September 2017 and 11 September 2017, during which time he was remanded on bail, and facing charges of:
(a)causing grievous bodily harm with intent to cause grievous bodily harm;3
(b)wounding with intent to cause grievous bodily harm;4 and
(c)assault occasioning grievous bodily harm.5
[6] The Western Australian Police now seek Mr Tamainu’s extradition pursuant to the Extradition Act 1999 (the Act), in order to prosecute him for the alleged offending. They have confirmed that Mr Tamainu travelled to Auckland from Perth on 7 September 2017. It is not in issue that Mr Tamainu has been residing in New Zealand since this time. It appears that Mr Tamainu also goes by the name of Paul Joseph George.
Alleged offending
[7] The alleged offending is said to have occurred on 11 June 2016 at the Ravenswood Hotel, in Ravenswood, Western Australia. Mr Tamainu and two co- associates were allegedly meeting with one of the victims to purchase prohibited
3 Criminal Code Act Compilation Act 1913 (WA), s 294(1)(a); maximum penalty 20 years’ imprisonment.
4 Section 294(1)(a); maximum penalty 20 years’ imprisonment.
5 Section 317(1)(b); maximum penalty five years’ imprisonment.
drugs. It is alleged that at the time of the planned meeting, Mr Tamainu and his associates were carrying balaclavas and a machete. The three victims arrived in a single vehicle, in which two of them remained, while the third entered a hotel unit.
[8] While the victim was in the hotel unit, it is alleged that Mr Tamainu and one of his associates entered the unit wearing balaclavas, with Mr Tamainu carrying a machete. It is alleged that they attacked the victim present in the hotel room, and then the other two victims when they sought to provide assistance. All three victims were said to have suffered serious injuries, but managed to make their way back to the vehicle, and then sought immediate medical assistance.
[9] Mr Tamainu’s associates were both found guilty of the alleged offending on 19 September 2017 in the Perth District Court.
Procedural background
[10] The application for Mr Tamainu’s extradition was filed in the District Court on 6 September 2022. It was determined on 7 September 2022 that Mr Tamainu was suspected to be in New Zealand, there were reasonable grounds to suspect that he is an extraditable person, and that the warrant for his arrest in Australia was in respect of extradition offences. Judge Hikaka therefore endorsed the Australian warrant for Mr Tamainu’s arrest.
[11] Mr Tamainu was located and arrested on 9 September 2022, and then bailed. At that time, he was represented by a duty solicitor. Prior to being released, Mr Tamainu signed an acknowledgment of receipt of the notice of application and all supporting documents, covering letter, and the warrant of arrest from Western Australia, along with a copy of his conviction and bail history, and the endorsed warrant. Ms Woodcock confirmed that this acknowledgment of receipt is held on the Crown file.
[12] It appears that Mr Tamainu instructed counsel, as on 28 September 2022, a joint memorandum of counsel was filed confirming the application for surrender was opposed and setting out that a notice of opposition, supporting affidavit and evidence was to be filed within five weeks, with two weeks for any reply. On 29 September
2022, the District Court confirmed a timetable whereby the notice of opposition, submissions and supporting affidavit evidence were due by 5:00 pm 2 December 2022, with the respondent’s reply to be filed by 16 December 2022. The hearing regarding the application for extradition was then scheduled for 30 January 2023.
[13] On 2 December 2022, Mr Tamainu’s counsel requested an extension of two weeks to file a notice of opposition, supporting affidavits and submissions. They advised that while Mr Tamainu had originally been privately represented, a civil legal aid application was required, and counsel was not, at that time, properly instructed. No change to the hearing date of 30 January 2023 was sought. On 8 December 2022, Judge Hikaka declined the request for an extension of time.
[14] No further documents were filed by counsel for Mr Tamainu until 25 January 2023, when counsel filed an application for leave to withdraw on the basis that they were without instructions. Counsel observed that they understood Mr Tamainu intended to self-represent in opposition to the Crown’s application. The application for leave to withdraw was granted on 26 January 2023.
[15] On 27 January 2023, a five-page document titled “document for ancill[e]ry purposes” was filed and served by Mr Tamainu as a self-represented litigant. This document rejected the District Court’s jurisdiction to determine the proceedings and appended his birth certificate and the New Zealand endorsement of the Western Australian arrest warrant.
[16] On 30 January 2022, the matter was called before Judge Greig. When the matter was first called, Crown counsel advised the judge that they had just been provided with an additional 15 page document from Mr Tamainu entitled “affidavit of truth” affirmed to be true and correct on 14 September 2022 but apparently only filed with the District Court on Friday 27 January. Crown counsel were given an opportunity to review the documents before the hearing proceeded. At this time, Mr Tamainu was also placed in custody following his refusal to go into the dock (this refusal appears to have stemmed from his view that the Court did not have jurisdiction over him). The matter was recalled before Judge Greig later in the day, with Ms Woodcock and Mr Tamainu in attendance.
District Court decision
[17] Judge Greig was satisfied that Mr Tamainu was eligible for surrender under the Act and issued a warrant for his detention in a prison pending Mr Tamainu’s surrender to Australia.
[18] During Judge Grieg’s oral delivery of his judgment, Mr Tamainu interjected on numerous occasions, indicating that:
(a)he had only received the papers the Wednesday prior to the hearing, being 25 January 2023, and that he had emailed his lawyers asking for them prior to then;
(b)he wanted to be judged in a common law court pursuant to the Magna Carta;
(c)he wanted due process;
(d)he wanted to be judged by his peers in the form of a jury;
(e)he felt like he was being denied justice;
(f)he objected to any attempt to impose jurisdiction over himself without due process of law;
(g)he was “a living being” and asking humbly “for remedy”;
(h)he would like to appeal the Judge’s decision; and
(i)he had “rebutted affidavits”.
[19] The Judge observed that Mr Tamainu had filed documents with the District Court claiming that he is a sovereign person not subject to its jurisdiction. His Honour also stated that Mr Tamainu would not be surrendered until 15 days had expired and
that he had the right to apply for a writ of habeas corpus and the right to lodge an appeal.
Approach to appeal
[20] Appeals may be brought against a decision under s 45 pursuant to s 68(1) of the Act, and are dealt with as if they are appeals under subpt 8 of pt 6 of the Criminal Procedure Act 2011.6 Such appeals are limited to questions of law, and an appellant is required to have the leave of the first appeal court in order to bring an appeal.7
[21] If either party brings an appeal on a question of law, the High Court must hear and determine the appeal and do one or more of the following:8
(a)reverse, confirm, or amend the determination in respect of which the case has been stated:
(b)remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:
(c)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:
(d)make any other order in relation to the determination that it thinks fit.
[22] In hearing and determining the question or questions of law arising on any case transmitted to it, the Court must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.9
[23] If the Court reverses a determination that a person is eligible for surrender, the Court must also either discharge the person; or remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible
6 Extradition Act 1999, s 69(2).
7 Section 68(2) and Criminal Procedure Act 2011, s 296(2). Leave does not appear to have been expressly sought but no objection was raised by the Crown. To formalise the position, I grant leave to bring this appeal.
8 Section 72.
9 Section 72(2)
for surrender be reheard.10 Despite this, if an appeal is against a determination that a person is eligible for surrender, and the Court determines that there has been an error of law, it may nevertheless decline to reverse or amend the determination in respect of which the case has been stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld.11
Analysis
[24] Mr Ryan, counsel for Mr Tamainu, submits that the hearing conducted on 30 January 2023 was conducted in breach of s 27 of the NZBORA. He says that Mr Tamainu was unrepresented, and was denied a reasonable opportunity to present his case, having only received documentation the Wednesday before the hearing, and having noted at the hearing that this did not give him an opportunity to respond. Mr Ryan submits that Mr Tamainu, as a self-represented and vulnerable person, suffered significant prejudice. Mr Ryan suggests that Mr Tamainu should either have had legal counsel or an amicus should have been appointed. He submits that the position as a result is that Mr Tamainu has not been heard on the substantive issues. He accepts that extradition processes should be prompt but nonetheless NZBORA rights should be respected. Mr Ryan further submits that given that the relevant offending is alleged to have occurred in 2016, a small further delay while remitting the matter back to the District Court for a rehearing in which Mr Tamainu has legal representation is not unreasonable.
[25]Mr Ryan relies on Flickinger v McElrea, in which it was observed:12
It is trite law but nonetheless fundamental that a party facing criminal proceedings such as this extradition application should not be forced on to trial without Counsel representing him having adequate time to prepare and consider all the relevant information.
[26] As such, the ground for Mr Tamainu’s appeal is not based on any error of law in the Judge’s application of the Act, nor does he appear to contest that the requirements of the Act in respect of his proposed extradition have been satisfied.
10 Extradition Act 1999, s 73(1).
11 Section 73(3).
12 Flickinger v McElrea HC Auckland M235/90, 20 February 1990 at 8.
[27] In response, the Crown says that Mr Tamainu’s appeal has not been filed in the prescribed form, and does not set out any questions of law, but rather that the appeal is pursued as a general appeal on the basis that the hearing in the District Court was unfair. The Crown accepts that the District Court has an obligation to provide a person eligible for surrender with a fair hearing in accordance with the principles of natural justice.13 However, the Crown submits that the requirements of natural justice depend on the circumstances and the nature of the decision.14
[28]In sum, the Crown submits that:
(a)Mr Tamainu acknowledged receipt of the application and supporting documentation on 9 September 2022, and that therefore any claim that he had not seen the documentation is plainly untrue.
(b)Mr Tamainu initially instructed counsel privately, and had ample opportunity to engage with them. They say that given the application for leave to withdraw it appears that he disengaged with counsel, and decided to represent himself.
(c)Mr Tamainu’s claim that he had emails that could establish he had never received the documents from his counsel has not been established on the evidence, and is also likely to be untrue.
(d)Mr Tamainu was heard and given an opportunity to be heard at the District Court hearing, and the sole focus of his submissions was to allege that he was not bound by the jurisdiction of the Court.
(e)No grounds have been established to displace his demonstrated eligibility for surrender.
(f)There has been no demonstrated breach of natural justice.
13 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [117]–[119], [184] per McGrath J and [284], and [309] per Glazebrook J.
14 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 141 (CA).
[29] Accordingly, the Crown says that the appeal should be dismissed and the District Court judgment confirmed.
The statutory scheme
[30] Part 4 of the Act provides a simplified procedure for extradition to Australia and certain other countries designated by the Governor-General.15 A New Zealand District Court judge may endorse warrants issued by those countries for arrest of a person in New Zealand.16 Under s 45(2), a person who falls within pt 4 of the Act is eligible for surrender if:
(a)a warrant for their arrest endorsed under s 41(1) has been produced to the Court;
(b)the Court is satisfied the person is an extraditable person in relation to the extradition country; and
(c)the offence is an extradition offence in relation to the extradition country.
[31] Under s 45(3), if the person satisfies the Court that there is a mandatory restriction on surrender under s 7, or it would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country, the person is not eligible for surrender. In addition, under s 45(4), the Court may determine that a person is not eligible for surrender if satisfied that a discretionary restriction applies under s 8.
[32] None of the mandatory or discretionary restrictions on surrender have been raised as an issue by Mr Tamainu to date.
[33] Under s 46(1), if the Court is satisfied that the person is eligible for surrender, the Court must issue a warrant for the detention of the person pending surrender to the extradition country or the person’s discharge according to law, and notify the person
15 Extradition Act 1999, s 40.
16 Section 41.
that they will not be surrendered until the expiration of 15 days after the date of the issue of the warrant. During that time the person has the right to make an application for a writ of habeas corpus, and to lodge an appeal under pt 8 of the Act. Mr Tamainu has not made a habeas corpus application. If the Court issues a warrant for detention of the person, s 46(2) also permits the Court to grant bail to the person.
[34] Extradition between Australia and New Zealand is less formal and more streamlined than the procedures required to extradite persons to other countries.17 The procedure, in which New Zealand is asked to “back” the overseas warrant for arrest, reflects the justified expectation that the respondent’s human rights will be observed in Australia, including their right to a fair trial.18
The appeal
[35]Section 27(1) of NZBORA provides:
Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
[36] Logically, the principle of natural justice includes the right to be adequately forewarned of allegations, so as to enable the preparation of a defence. For example, natural justice is breached where a self-represented litigant has insufficient time to respond to evidence filed on the morning of the hearing of an application for a restraining order.19 The NZBORA is applicable to extradition proceedings.20
[37] At the time of the District Court hearing, Mr Tamainu was representing himself. As noted, his previous counsel were granted leave to withdraw by Judge Grieg on 26 January 2023, for want of instruction. In their application for leave to withdraw counsel stated:
1.Mr Tamainu is to appear on 30 January 2023.
17 Mailley v District Court at North Shore [2013] NZCA 266 at [7].
18 Commonwealth of Australia v Mercer [2016] NZCA 503 at [18].
19 Bakker v District Court at Te Awamutu HC Hamilton CP35/99, 6 August 1999 at 12.
20 See Dotcom v United States of America DC North Shore CRI-2012-092-1647, 29 May 2012.
2.Counsel is without instructions and respectfully seeks leave to withdraw.
3.Counsel understands Mr Tamainu intends to self-represent in opposition to the Crown’s application.
4.Counsel remains available to appear to assist the Court if required.
[38] This appears to be the basis for the Judge’s reservations about the veracity of Mr Tamainu’s claim that he had only received the documentation the Wednesday before the hearing. It seems likely that Mr Tamainu’s counsel at that time would have proactively sought to provide him with the requisite documentation and sought instructions from him. The memorandum of counsel makes clear that Mr Tamainu did not provide those instructions for the purpose of the District Court hearing, instead electing to self-represent.
[39] The initial instruction of counsel, the acknowledged receipt of documents in September 2022 and the significant period of time between his release on bail and the District Court hearing mean it is difficult to accept that Mr Tamainu did not have sufficient time to prepare any defence. Mr Ryan submitted that it is not established that Mr Tamainu actually took away the documents in September 2022, but I did not understand him to contest the record as confirmed by Ms Woodcock. Nor has Mr Tamainu at any stage provided an evidential basis for a conclusion that he only received the relevant documentation five days prior to the hearing on 30 January 2023. Therefore, there can be no real question that he was in fact provided with the documentation necessary to have been aware of the case against him. I conclude that Mr Tamainu has had an opportunity to prepare his opposition to the application for surrender since September 2022 but has chosen not to do so (except so far as he has contested the Court’s jurisdiction over him).
[40] In Flickinger v McElrea, Mr Flickinger successfully reviewed a decision by Judge McElrea concerning an application for an adjournment in the context of Mr Flickinger’s proposed extradition to Hong Kong.21 At some point during the first extradition hearing, at the conclusion of the case for the Crown Colony of Hong Kong, counsel for Mr Flickinger sought an adjournment. Judge McElrea granted a two day
21 Flickinger, above n 12.
adjournment. On the application for review, Mr Flickinger alleged that the two days granted was insufficient to enable his counsel to do justice to his position, and made it impossible for his counsel to adequately represent him, as they had been appointed one week before the case was due to start. He alleged that the result would be an unfair hearing.
[41] The Crown Colony of Hong Kong had produced 14 volumes of documents in its case. Ten of those volumes had been in the possession of Mr Flickinger’s previous solicitors, but were restrained pursuant to a solicitor’s lien, until after his new counsel were retained, and a District Court Judge had directed their release. The other four were handed to Mr Flickinger four days prior to the commencement of the extradition hearing.
[42] On the application for review, Smellie J concluded that a two day adjournment had been insufficient to enable Mr Flickinger to adequately respond to the Crown Colony of Hong Kong’s evidence. Smellie J accordingly set aside Judge McElrea’s decision, and remitted the matter back to him to reconsider.
[43] I do not consider the present case to be in any way similar to Flickinger, where it was established that Mr Flickinger was unable to access a large volume of documentation until days before the hearing of the extradition application, and other material was raised in the case against him to which he had also not had access. In the present case, I consider that Mr Tamainu has had sufficient opportunity to access the relevant documentation, to access legal advice and to prepare for the hearing. Rather than addressing these matters, Mr Tamainu instead chose to focus on his position that the District Court had no jurisdiction over him.
[44] As noted above, the extradition process reflects the justified expectation that the Mr Tamainu’s human rights will be observed in Australia, including his right to a fair trial.
[45] I am satisfied that Mr Tamainu was provided with an opportunity to be heard, and there is no basis upon which to conclude that his natural justice rights have in fact been breached. Accordingly, I do not find there to be any error of law made out.
[46] As such, I conclude that the appeal should be dismissed and the District Court decision confirmed.
Result
[47]Appeal dismissed. I order that the District Court decision be confirmed.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth, for Respondent
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