DARREN CHVASTEK v THE COMMONWEALTH OF AUSTRALIA & ANOR [2002] NZCA 99 (9 May 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca281/01

	between	darren cHvastek
		First Appellant

	and	the commonwealth of australia
		First Respondent

	AND	the district court at rotorua
		Second Respondent

Hearing:	2 May 2002
Coram:	Keith J Hammond J Salmon J
Appearances:	R Vigor-Brown for the Appellant N M Crutchley and T J Warburton for the First Respondent and the Second Respondent (which abides the decision of the Court)
Judgment:	9 May 2002

judgment of the court delivered by keith j

An extradition order is made

[1] The Government of the Commonwealth of Australia seeks the extradition of Darren Chvastek to face drugs charges in Melbourne.The offences were allegedly committed on 21 and 23 April 1997.They involved two supplies of cocaine for prices of $5,500 and $96,000.Four others were arrested with him.

[2] Mr Chvastek was bailed by the Melbourne Magistrates' Court on 24 April 1997 to appear on 6 May 1997.On that day he failed to appear.He was arrested in Rotorua on 26 June 2001 under an arrest warrant issued in Australia and endorsed by a District Court Judge in New Zealand under s41 of the Extradition Act 1999.Mr Chvastek was then brought before the District Court in Rotorua under s44.The Court decided that he was eligible for surrender in terms of s45(2), that is that the required endorsed warrant had been produced, that the person was an extraditable person, and that the offence was an extraditable one in relation to the extradition country.That eligibility was not and is not in dispute.

[3] What was in dispute was whether certain restrictions on surrender apply, in particular those set out in ss8(1)(c) and 48(4)(a)(ii) of the Act:

8 Discretionary restrictions on surrender

(1) A discretionary restriction on surrender exists if, because of--

...

(c) The amount of time that has passed since the offence is alleged to have been committed or was committed,--

and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.

48Referral of case to Minister in certain circumstances

(4) If--

(a) It appears to the court in any proceedings under section 45 that--

(i) Any of the restrictions on the surrender of the person under section 7 or section 8 apply or may apply; or

(ii) Because of compelling or extraordinary circumstances of the person, including, without limitation, those relating to the age or health of the person, it would be unjust or oppressive to surrender the person before the expiration of a particular period; but

(b) In every other respect the court is satisfied that the grounds for making a surrender order exist,--

the court may refer the case to the Minister in accordance with subsection (5).

It will be seen that s48(4)(a)(ii) is concerned only with delaying the surrender for compelling or extraordinary personal circumstances.

[4] On arrest, the appellant had come to an arrangement with the Victorian police under which he was to act as an informant for them and they would not oppose bail.He also contended that those charged with him would also be bailed, that he would be granted immunity in respect of the charges on which he was arrested and that he and his family would be given new identities.The others were not given bail when he was and that alleged breach of the agreement indicated that he had become an informer with the consequence that his life was in danger.It was the authorities in Australia who had caused him not to honour his bail and flee, and who accordingly were responsible for the delay in terms of s8(1)(c).His argument relating to s48(4)(a)(ii) was based on the arrangement with the Victorian police, the threat to his safety resulting from the breach and his personal and family circumstances in New Zealand.

[5] The District Court held that neither of those grounds had been made out on the facts.Accordingly, the Court made a surrender order under s47.It also issued a warrant under s46(1)(a) for the detention of Mr Chvastek in a penal institution pending his surrender to Australia or discharge according to law. Mr Chvastek was also advised, as required by s46(1)(b), of his right to apply for habeas corpus and to appeal, the latter being by way of case stated.There was an attempt to use that latter procedure but one of the required steps was not taken in time and that matter is no longer extant.

The District Court order is challenged by judicial review

[6] The matter that is before us is an appeal from a refusal by Paterson J in the High Court to grant judicial review of the District Court decision.The application was based on allegations that the District Court Judge in the course of the hearing under s45

· misconducted himself

· failed to hear, determine and take into account relevant matters

· acted so that an unfair hearing resulted.

[7] In his written submission to this Court Mr Vigor-Brown, counsel for the appellant, said that the only ground now is procedural unfairness.He makes a related submission, for the first time on appeal, that discovery should have been granted in the District Court.He acknowledges that he made no application for it in that Court although he did obtain copies of documents from the Rotorua police file relating to the action they took on the extradition request.

Was there excessive judicial intervention?

[8] The procedural unfairness argument is based on interventions by the Judge during Mr Vigor-Brown's cross-examination of the Victorian detective who gave evidence about the arrest of the appellant and related matters occurring in Melbourne.Of the twelve interventions complained of in the High Court, six are maintained on appeal.The appellant's position is that while many of the interventions were, on their face, innocuous, their cumulative effect seriously disadvantaged counsel to the extent that there should be a rehearing of the matter.The submission identified six other passages in the record of the hearing which aresaid also to show the need for discovery in this extradition hearing.

[9] The appellant's submission has to be seen against the questions which the District Court Judge had to answer and the evidence relevant to those issues which was elicited in the hearing.The questions arise in the limited context of proceedings under Part 4 of the Extradition Act.That Part is designed to make extradition to Australia more straightforward than to other countries.In that, the Part carried forward the simplified proceedings of Part II of the Fugitive Offenders Act 1881 (Imp).In particular, as s45(5)(a) emphasises, the District Court need not, indeed must not, make any assessment of the evidence relating to the substance of the charges.By contrast, when other countries request extradition they have in general to satisfy the Court that the evidence given at the hearing would justify the person's trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand (s24(2)(d), and see s45(5)(b)).

[10] The evidence at the District Court hearing is accordingly confined.In the present case it was limited to the particular grounds, in ss8(1)(c) and 48(4)(a)(ii), that Mr Chvastek invoked. The evidence which he claimed to be relevant to those grounds concerned the arrangement he reached with the Victorian Police to be an informer, and the alleged breaches of the arrangement.It had or was alleged to have the features already mentioned which it is convenient to repeat:

(1) the appellant would be bailed

(2) the co-accused would be bailed at the same time

(3) he would be granted immunity in respect of the charges

(4) he and his family would be protected, in part by being given new identities.

[11] The Victorian police officer accepted (1) in his evidence.On (2) he noted that two of the co-accused were bailed a "few" days later (in fact seven and 12 days later) on the first occasion they applied.The officer denied (3), saying that the only benefits he could see for the appellant were that in the short term he had his freedom and that a sentencing Judge would take into consideration the benefit the appellant had provided in subsequent investigations, although immunity would be applied for in respect of any activity that he took at police direction.And the officer denied (4).The appellant then gave evidence.At the outset of that evidence, the Judge rejected an objection by the Crown Solicitor to the line of questioning being followed by Mr Vigor-Brown, saying this:

I do not want to inhibit the respondent in telling me what he wants to tell me. If it is relevant to the matters that I have to decide and that is the limitation.I know this is an important day for him.I do not want to curtail his evidence on relevant matters.

[12] The appellant contradicted the detective's evidence on several points.He gave evidence in support of an arrangement in the terms set out in para [10] above.He also testified that the failure by the police to have the co-accused bailed at the time he was bailed put his life at risk.He was accordingly forced to flee.We would note that after that alleged failure he had further meetings with the police (at least one of them after one of his co-accused had been bailed) and in the course of one of the meetings, according to the Victorian police records, was interviewed on tape in relation to the charges and made full admissions.In the course of that interview the appellant made preliminary phone calls, at the request of the Police, to set up a drug transaction.It was after that meeting that he left Victoria.He testified that because the police wanted him, rather than an undercover officer, to do that deal, he would have had no protection.They had broken their word, he was not going to put himself in that position, and he got out.

[13] Against the background of the evidence actually before the Court and arguably relevant to the grounds which would deny or delay surrender, we now turn to the six judicial interventions of which the appellant continues to complain.The first occurred after counsel for the appellant had established that Mr Chvastek was facing extremely serious charges, was bailed, and probably had the advice of a lawyer. The transcript then reads:

Mr Vigor-Brown:So my question to you was this. He's on charges of trafficking, $96,000 worth -

The Court:Mr Vigor-Brown if your questions are going where I think they are going, the witness has already said that bail was not opposed as he had agreed to become a Police informer. Is that where you are getting to?

Mr Vigor-Brown: Well I am and then there is anotherstage.

The Court:Right move onto that other stage then.

[14] Paterson J found the intervention had not caused any harm nor was it unwarranted.Evidence had already been given of the seriousness of the charge and the granting of bail."Prima facie, counsel was asking repetitive questions, and this in itself is a ground for objection."Counsel contended before us that "the gist of the matter was to explore the facts of this extraordinary arrangement".Counsel wanted to know everything about the surrounding circumstances;they impacted on the nature and extent of the argument.We agree with the High Court that the question was repetitive.As appears from this judgment, counsel was able to raise all the issues about the alleged detail of the arrangement that he mentioned, in cross-examination of the detective, in the examination of his own client or in both.There is nothing in this objection.

[15] The second incident related to counsel asking "What did the Police submit [on the bail applications] to the Court that morning?" to which the Crown Solicitor objected.The Judge asked Mr Vigor-Brown to be more specific.He submits to us that he could not have been more specific because he did not have discovery and the question he was asking was crucial to an understanding of extent and nature of the agreement.Paterson J rejected this complaint, stating

That submission appears to overlook the fact that it is the Court, and not the police, who determine whether bail will be granted on serious charges such as this. In any case, the interruption was not made by the Judge but by counsel who is entitled to challenge the question both on the grounds of hearsay and vagueness. The Judge took the acceptable step of asking Mr Vigor-Brown to be more specific.

We agree and would add that Mr Chvastek gave evidence himself about what the police said to the Court at the bail hearing.

[16] The third incident occurred after the detective had stated what he saw as the benefits to Mr Chvastek if he became a police informer (para [11] above). In respect of the benefit arising from bail, counsel asked, "So when would the police then have decided to, as it were, revoke his freedom by opposing bail?" The Judge directed the detective "don't answer that.Not relevant and hypothetical."Counsel's reply was

Well what the witness is saying is that there would have been two incentives, firstly his freedom in the short term and secondly may be a reduced sentence. So I am seeking to clarify when that short term ended.

[17] The Judge responded by telling Mr Vigor-Brown that this matter was not relevant and directing him to move on to something else. Paterson J held that the Judge was perfectly entitled to raise the question of relevance and that the witness was being asked to speculate.Counsel submits to us that the question was relevant because there must have been some arrangement about when bail would end.This information was necessary to determine whether it was unjust or oppressive to surrender Mr Chvastek.We see no force in the objection.The normal course would be for bail to continue until trial unless its terms were breached, in which event the decision would of course be for the Victorian court and not for the police.In that sense it was already clear when the short term benefit would end.No further clarification was required.

[18]The fourth intervention arose after Mr Vigor-Brown asked a further series of questions, including one relating to a statement which Mr Chvastek made admitting his involvement in the cocaine deal for which he was arrested. He then said this to the police officer:

[Mr Chvastek] will say that the police whether it be you or another Officer, wanted that statement from him as a surety for the bosses for the police bosses so that he would adhere to the arrangement, have you any comment to make about that?

[19] There was then a lengthy exchange between the Judge and both counsel, beginning with the Judge drawing Mr Vigor-Brown's attention to s45(5)(a) which states that a person to whom proceedings under Part 4 relate is not entitled to adduce, and the Court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which the surrender is sought.Mr Vigor-Brown replied by pointing out that the question did not relate to the alleged selling of the cocaine but to events after the selling and, in particular, the deal entered into with the police, and his concerns about the outcome of that deal. The Judge repeated that he found it hard to see how the matter could be relevant to the assessment he had to make about ss8 and 48 and counsel moved onto a new line of questioning. Counsel submits that evidence about the post-arrest dealing between the appellant and the police and the appellant's concerns about his safety would all be necessary to determine the nature and extent of the agreement.Paterson J agreed with the Judge's assessment that the question on the face of it did raise questions of relevance.The submission in this Court again emphasised the need to probe the scope of the arrangement, but counsel had and took the opportunity to pursue the particular elements of it that he saw as significant in cross-examining the detective or examining his own client.

[20]The next intervention which was objected to arose when the detective was advised that Mr Chvastek would say that there were only two meetings between himself and the police and not six, as alleged by the detective. At that stage the Judge said:

So what. Mr Vigor-Brown, I take your point and I am very happy to accept that a person who agrees to act as an informant for the Police places himself in a degree of personal jeopardy and that I am sure is the case in Australia as it is in New Zealand.

[21] Counsel submits that this inferentially prevented cross-examination on what happened at the actual meetings.Paterson J rejected this submission stating that the Judge's comment did not go to the content of the meetings.We agree.Dispute about the number of meetings itself does not preclude questioning on their nature and content.

[22] The final intervention subject to challenge related to the appellant's alleged full admission, at his last meeting with the police, of the offences with which he was charged:

Mr Vigor-Brown: I am going to ask this Sir and Your Honour can stop me if it's the course, but I am just interested - the second statement was a full confession?

Police Officer: To the best of my knowledge yes.

Mr Vigor-Brown: Right, that was made when he was out on bail?

Police Officer: Yes it was.

Mr Vigor-Brown: Do you know at that stage why he made a full statement?

Court:Don't answer that please.

[23] As Paterson J said, the objection to this interruption overlooks the fact that a witness cannot give evidence on what motivated another into acting as he did.Again we would note that Mr Vigor-Brown had the opportunity to ask Mr Chvastek about his own state of mind when he gave his evidence.

[24] Counsel also criticises the lack of judicial intervention during cross-examination by the Crown Solicitor.Counsel submits that the latitude afforded to the Crown Solicitor in cross-examination demonstrates a lack of balance between the two sides of the hearing.Mr Vigor-Brown objected to only one of the questions in cross-examination and we can see no problem of balance arising from that evidence.

[25] Paterson J noted that many of the Judge's interruptions were on the ground of relevance and held that the Judge was perfectly entitled to ask the questions he posed.He concluded "that if counsel was unable to cross-examine on relevant matters this was because of the manner in which counsel cross-examined.Nothing the Judge did prevented this."We agree, essentially for the reasons he gave, that "Mr Chvastek has not come close to establishing that there are grounds for judicial review" on the basis of excessive judicial intervention.There is no possible basis for saying that the Judge's intervention in the cross-examination of the detective would present a risk in the public perception that he was holding the scales of justice other than evenly (eg E H Cochrane Ltd v MOT [1987] 1 NZLR 146, 151-152, 155).

Is discovery available in extradition proceedings in the District Court?

[26] Mr Vigor-Brown accepted that discovery would not have been available to him.He also faced the difficulty that he had not sought it at the appropriate stage.

[27] So far as applications under Part 4 of the Extradition Act are concerned, s43(1)(b) provides that with necessary modification certain provisions of the Summary Proceedings Act 1957 apply.It is clear that those provisions do not allow pretrial discovery against third parties, eg Attorney-General v Otahuhu District Council [2001] 3 NZLR 740.There is the further difficulty in this case that the relevant materials, if any, are held by a foreign government and, further, it is not, of course, subject to the regime of the Official Information Act 1982.

[28] We would note that in any event several of the matters relating to which Mr Vigor-Brown would have sought discovery were equally within the knowledge of Mr Chvastek. Others might not have been the subject of any documentation.

Result

[29] The appeal is dismissed.The matter is remitted to the District Court for a Judge to certify under s133 of the Summary Proceedings Act 1957 (see s69(l) of the Extradition Act) that the appeal by way of case stated has not been prosecuted.When that certificate has been given, all procedural steps will, as we understand it, have been completed necessary for the appellant to be surrendered to the Australian authorities.

Solicitors:

Crown Law Office, Wellington