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Court of Appeal of New Zealand |
Last Updated: 12 July 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent
NEW ZEALAND POLICE
Second Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by French
J)
Table of contents
Para No
Introduction [1]
The legislative
framework [6]
Factual
background [14]
Grounds
of appeal [28]
Was the
New Zealand Police the wrong applicant? [32]
Failure to address the s 8
issues [44]
Failure to
address s 48(4)(a)(ii) [49]
Result [70]
Introduction
[1] Mr Mailley is wanted by Queensland Police to face fraud charges in Queensland, Australia. They seek his return from New Zealand and in 2008 arranged with New Zealand Police for extradition proceedings to be filed in the District Court at North Shore.
[2] In the District Court, Judge Hubble determined that Mr Mailley was eligible for surrender from New Zealand under s 45 of the Extradition Act 1999 (the Act) and accordingly issued a warrant for his detention and surrender.[1] Mr Mailley challenged that decision by way of judicial review and case-stated appeal in the High Court. Justice Ellis dismissed the application for judicial review and answered the question in the case stated in favour of the New Zealand Police.[2]
[3] Mr Mailley now appeals the judgment of Ellis J on the judicial review. The High Court granted leave to appeal the judgment in the case stated appeal, but no appeal was ever filed.
[4] The key issues raised by the appeal are:
- (a) whether the New Zealand Police was the correct applicant in the extradition proceeding; and
- (b) whether Mr Mailley should be extradited without the Court addressing his mental health issues.
[5] For completeness, we record that in accordance with usual practice, the first respondent did not take an active part in the hearing but abided the decision of the court.
The legislative framework
[6] Before turning to the facts, it is necessary to briefly explain the legislative framework.
[7] Extradition between Australia and New Zealand is governed by a special procedure contained in Part 4 of the Act.[3] The Part 4 procedure is less formal and more streamlined than the procedures pertaining to extradition between New Zealand and most other countries. It reflects the high degree of comity between New Zealand and Australia.
[8] Part 4 provides that where a warrant for the arrest of a person has been issued by a person having authority to do so in Australia, it can be endorsed by a District Court Judge in New Zealand. This process is known as a “backed” warrant. Once endorsed, the warrant authorises the New Zealand Police to arrest the person sought to be extradited and bring them before the District Court to determine whether they are eligible for surrender under s 45 of the Act.
[9] Section 45 states:
- Determination of eligibility for surrender—
(1) Subject to section 44(4), if a person is brought before a court under this Part, the court must determine whether the person is eligible for surrender in relation to the offence or offences for which surrender is sought.
(2) Subject to subsections (3) and (4), the person is eligible for surrender if—
(a) a warrant for the arrest of the person described in section 41(1) and endorsed under that section has been produced to the court; and
(b) the court is satisfied that—
(i) the person is an extraditable person in relation to the extradition country; and
(ii) the offence is an extradition offence in relation to the extradition country.
(3) The person is not eligible for surrender if the person satisfies the court—
(a) that a mandatory restriction on the surrender of the person applies under section 7; or
(b) that the person’s surrender would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country.
(4) The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8.
[10] In this case, much attention has focused on s 45(4). It confers a discretion on the Court to determine that a person who might otherwise be eligible for surrender in terms of the criteria in s 2 is not eligible because a s 8 discretionary restriction applies. Under s 8(1), a discretionary restriction will exist if, because of:[4]
(a) The trivial nature of the case; or
(b) If the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(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.
[11] Assuming that the eligibility criteria for surrender under s 45(2) are met and there are no discretionary restrictions, then the Court must immediately make a surrender order, unless the Court decides to refer the case to the Minister of Justice (the Minister). The circumstances in which the Court is empowered to refer a case to the Minister are set out at s 48. The key provision for present purposes is s 48(4) which states:
(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).
[12] Once a case has been referred to the Minister by the court under s 48(4), then the Minister must determine whether the person is to be surrendered having regard to the matters contained in s 30.
[13] We turn now to the facts of this case.
Factual background
[14] Mr Mailley has been charged in Queensland, Australia with committing fraud and attempting to commit fraud between 1999 and 2002. The charges (12 in total) are based on allegations that while in receipt of welfare benefits, he was living on fraudulently obtained credit cards. The total amount involved is alleged to be in the vicinity of A$2m. The more serious of the charges carry a maximum penalty of ten years imprisonment.
[15] In 2005, after he had been committed to stand trial, Mr Mailley breached his bail and left Queensland for New Zealand. He was born in New Zealand. A Queensland Court issued a warrant for his arrest. When the Queensland Police discovered Mr Mailley was in New Zealand, they consulted their New Zealand counterparts. The warrant was then transmitted to New Zealand where it was endorsed by a District Court Judge.
[16] The New Zealand Police eventually located Mr Mailley in July 2008. He was arrested and on 2 July 2008 an application to determine his eligibility for surrender was filed in the District Court, the applicant being shown as the New Zealand Police. Mr Mailley appeared in Court that same day and was remanded in custody by consent pending a bail application and timetabling directions for the extradition proceedings. Then followed numerous adjournments and successive warrants of detention. Bail was declined in November 2008 but in December 2008 the High Court granted Mr Mailley a writ of habeas corpus on the grounds of deficiencies in both the endorsed warrant and the subsequent warrants.[5] Mr Mailley has been on bail ever since while the extradition proceedings have continued.
[17] The application for a surrender order was heard in the District Court before Judge Hubble. The hearing began on 4 June 2009. It was not completed in the two days that had been allocated and was adjourned. Further hearings were held on 31 August 2009 and 1 September 2009. In a reserved decision dated 11 September 2009, Judge Hubble held that the New Zealand Police was the appropriate applicant, rejecting an argument that the application should have been brought by the Commonwealth of Australia. Judge Hubble further found that the criteria set out in s 45(2) were satisfied, namely that an endorsed warrant for Mr Mailley’s arrest had been produced to the court, that Mr Mailley was an extraditable person in relation to Australia and that the offences with which he was charged were extradition offences within the meaning of the Act.
[18] The Judge went on to say that some of the arguments advanced on Mr Mailley’s behalf raised issues that were more appropriate to a discretionary restriction argument under s 8. He identified those issues as being whether the accusations made against Mr Mailley were made in good faith and in the interests of justice, whether the delay that had occurred rendered it unjust or oppressive to surrender Mr Mailley, and whether because of the deficiencies with the warrants the whole procedure should be commenced afresh. Judge Hubble directed that counsel for Mr Mailley was to advise whether he wished to proceed with an application under s 8 and, on the assumption that he did so wish, the Judge made timetabling directions relating to any further evidence and submissions.
[19] The outcome of the District Court hearing was therefore that, subject to any further issues which might be raised under s 8, Mr Mailley would be eligible for surrender.
[20] A hearing for the s 8 issues was duly scheduled for 17 March 2010. Mr Mailley and the New Zealand Police both filed submissions and evidence in anticipation. Two Australian Police witnesses were flown to New Zealand from Australia for the hearing, Mr Mailley having required their attendance for cross-examination. However, shortly before the hearing, Mr Mailley’s then counsel advised that Mr Mailley had instructed him not to pursue the application under s 8 but proposed to appeal the Judge’s decision under s 45. In light of that advice, the fixture was vacated and on 17 March 2010 Judge Hubble made the determination of eligibility final. A surrender order and a warrant for Mr Mailley’s detention were then issued.
[21] Before the surrender order could take effect, Mr Mailley filed a notice of intention to appeal to the High Court by way of case stated on a question of law. The notice specified two questions for the High Court:
- (a) Was the District Court correct to conclude that the New Zealand Police have authority to apply for the extradition of a New Zealand citizen or resident under Part 4 of the Act?
- (b) Was the District Court correct to conclude that it retained jurisdiction in the proceedings despite the errors identified by the High Court in the habeas corpus proceedings?
[22] Counsel for the Police opposed the inclusion of the second question and on 13 August 2010, Judge Hubble stated a case on the first question reformulated in the following terms:
... whether my conclusion that the New Zealand Police were the appropriate applicant was erroneous in point of law.
[23] The final version of the case stated was filed in the High Court on 23 August 2010.
[24] On 27 September 2010 Mr Mailley filed a separate claim in the High Court for judicial review, essentially raising the two issues on which he had originally sought a case to be stated. Both the case stated and the judicial review were subsequently directed to be heard together before Ellis J. The hearing in the High Court was held on 9 March 2011.
[25] In her decision delivered on 12 April 2011, Ellis J held that Part 4 correctly interpreted did not require the extraditing country (Australia) to be a party to the proceedings. Indeed, she held there was no true applying party because the proceedings under Part 4 are inquisitorial in nature, not adversarial. It followed that in Ellis J’s view it was not an error of law for Judge Hubble to have found that the New Zealand Police was an appropriate applicant. The Judge further found that any flaws in the warrants were not such as to deprive the District Court of jurisdiction. As regards an argument that there had been undue delay such that it was now an abuse of process for Mr Mailley to be extradited, Ellis J said that was a matter relevant to the s 8 inquiry which Mr Mailley had abandoned. The Judge held that in any event in her assessment, responsibility for much of the delay lay properly at the feet of Mr Mailley himself or his counsel.
[26] Ellis J accordingly answered the question in the case stated in the negative (i.e. adversely to Mr Mailley) and dismissed the application for judicial review.
[27] Mr Mailley now appeals Ellis J’s decision on the judicial review claim. He has not filed any appeal in relation to the case stated.
Grounds of appeal
[28] The grounds of appeal set out in the original notice of appeal were all essentially concerned with Ellis J’s interpretation of Part 4, whether the New Zealand Police was the correct applicant and whether Ellis J was correct to find that issues about the process were s 8 issues rather than going to jurisdiction.
[29] Subsequently, Mr Mailley applied for leave to adduce two further affidavits on appeal and for leave to amend the grounds of appeal referable to the further affidavit material. The application was opposed. After hearing argument, this Court granted Mr Mailley leave to amend the grounds of appeal to include the following new ground “whether there has been an injustice in the lower Courts in not addressing the issues under s 8 and s 48(4) of the Extradition Act 1999”.[6]
[30] At the hearing before us, Mr Cooke QC refined the issues to three key questions:
- (a) Should the proceedings have been brought by the state seeking extradition (either the Commonwealth of Australia or the State of Queensland) rather than the New Zealand Police and if so has the error prejudiced Mr Mailley?
- (b) Have the proceedings miscarried because of the failure of the District and High Courts to address s 8 issues?
- (c) Have the proceedings miscarried because of the failure of the District and High Courts to consider whether Mr Mailley’s mental health problems warranted referral to the Minister under s 48(4)(a)(ii)?
[31] We turn now to consider each of these.
Was the New Zealand Police the wrong applicant?
[32] The Act does not expressly state who the applicant must be.
[33] However, as submitted by Mr Cooke, there is a “country” theme. Thus for example, s 39 states that Part 4 applies to Australia and any designated country; s 41, which regulates the backed warrant process, refers to the warrant issued in an “extradition country”; and s 49 says the Minister can seek undertakings from the extradition country. Section 43 states that the Court must conduct proceedings under Part 4 in the same manner as if the person were charged with a summary offence alleged to have been committed within the jurisdiction of New Zealand. That points against the proceeding being inquisitorial as suggested by Ellis J, but also might suggest the New Zealand Police was the appropriate applicant. However Mr Cooke points out that prosecutions can be brought under the Summary Proceedings Act 1957 by any person.[7] He contends that the real question is “who is the accuser/who is the person making the allegations”. The accuser is not the New Zealand Police but the Commonwealth of Australia or the State of Queensland.
[34] Of particular significance in our view is s 99 which states that:
If 2 or more countries seek and obtain an order for the surrender of the same person under Part 3 or Part 4 ...
[35] Clearly, the section contemplates the country as being the applicant, even in Part 4 applications, because the section contemplates that the country will “seek and obtain” the order for surrender. It seems an oblique way for Parliament to express an intention that the country must be the applicant, however. We see force in the submission made by Ms Gordon QC that the fact that there is nothing in Part 4 indicating who the applicant should be shows that this was not seen as a significant issue by Parliament.
[36] The reality is that everyone involved in a Part 4 application knows that the country (or the jurisdiction within the country) that is behind the application is the country to which the subject of the application must return if the order is made. It is clear that the backed warrant process is essentially a process involving co-operation between the police authorities of the requesting jurisdiction and of New Zealand. To give effect to the Part 4 process, the New Zealand Police must exercise powers in a similar way to the way they would in relation to a New Zealand warrant. The court application will be initiated by the Crown Solicitor in the relevant area. There can be no doubt in anyone’s mind that the New Zealand Police is acting on behalf of the requesting country, whether the applicant is the New Zealand Police (acting on behalf of the requesting party, whether that is stated in the intituling or not) or the requesting country (acting through the New Zealand Police, whether that is stated in the intituling or not).
[37] That may explain why there has been such an inconsistency in the practice adopted in relation to Part 4 applications: Ms Gordon pointed to examples where the application was made in the name of (i) the relevant Part 4 country, (ii) the New Zealand Police, and (iii) the New Zealand Police on behalf of the Part 4 country. There is nothing to indicate that the choice of intituling had any bearing on the manner in which the process was conducted.
[38] Having regard to the provisions referred to above and in the absence of any provision expressly empowering the New Zealand Police to apply for a surrender order, we conclude that applications such as the present one should be brought in the name of the relevant Part 4 country, in this case, the Commonwealth of Australia. We see that as consistent with s 99 and also a proper recognition that the New Zealand Police and the Crown Solicitor are acting on behalf of the Part 4 country in relation to a unique statutory regime that differs from their roles in the prosecution of crime in New Zealand. That statutory regime recognises that a successful application will lead to a criminal process in a jurisdiction that the New Zealand Parliament has accepted has proper safeguards for accused persons.
[39] We conclude therefore that the applicant in the extradition application should be the Commonwealth of Australia. We recognise that the jurisdiction to which Mr Mailley would be returned in the event of a successful application would be the State of Queensland, but we consider the more appropriate applicant is the Commonwealth, because of the nation to nation nature of the extradition process reflected in the fact that the request to the New Zealand Police comes through the national Australian authorities, not directly from the state or territory involved.
[40] We now turn to the more important question, namely whether Mr Mailley has suffered any prejudice as a result of the application having been brought in the name of the New Zealand Police.
[41] Mr Cooke submitted that the error is more than a technical point, that Mr Mailley was entitled to have the proceedings commenced in the correct name and that the error had affected Mr Mailley’s substantive rights. When asked to explain why it mattered, Mr Cooke submitted three reasons:
- (a) first, if the proceedings had to be recommenced because of the wrong name, that would mean Mr Mailley’s delay argument became more potent;
- (b) secondly, re-determination would allow Mr Mailley to proceed afresh, unencumbered by the criticisms he had made of the various counsel who have represented him; and
- (c) thirdly, because it affected his rights of discovery.
[42] However, the first two matters do not amount to prejudice caused by the New Zealand Police being the applicant. They are consequential benefits Mr Mailley would gain if we acceded to the argument that the error mattered. The reasoning is thus circular. As for the third matter, Mr Cooke was not able to identify any document which Mr Mailley has been unable to obtain as a result of the New Zealand Police being the party rather than the Commonwealth of Australia. The material before us indicates that the New Zealand Police made a request of the Australian police and that disclosure of the documents received from Australia was subsequently made to Mr Mailley’s counsel by the Auckland Crown Solicitor.
[43] In our view, the naming of the wrong applicant was merely a procedural technicality.[8] It can be addressed by amendment to the party to the extradition proceeding if Mr Mailley seeks such an amendment.
Failure to address the s 8 issues
[44] For convenience we set out the relevant provisions of s 8 again:
(1) A discretionary restriction on surrender exists if, because of—
(a) the trivial nature of the case; or
(b) if the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(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.
[45] Mr Mailley contends that an injustice has occurred because the courts below failed to address the issue of whether a discretionary restriction existed under s 8. In response to the Crown’s argument that he abandoned his s 8 application, he says he was bullied into withdrawing it by his then counsel Mr Illingworth QC. He further contends that the application should not have been abandoned until further medical reports were obtained. Mr Mailley agreed to provide a waiver of solicitor/client privilege and accordingly we have had had the benefit of affidavit evidence from Mr Illingworth.
[46] The submissions filed by Mr Illingworth in the District Court raised three issues under s 8: lack of good faith on the part of the Queensland Police, delay and injustice/oppression. Mr Illingworth deposes that after reading the police evidence, he was satisfied that the lack of good faith argument would not succeed. He also says that after reviewing the Crown material explaining the delays that had occurred in both New Zealand and Australia, he concluded that the delay argument would also fail. As regards the injustice/oppression argument, that related to Mr Mailley’s health. The submissions mention a heart condition and post traumatic distress disorder as well as suicidal ideation. As Mr Illingworth recalls it, the Crown’s position was that Mr Mailley could receive adequate treatment for his health issues in Australia. Mr Illingworth considered that this argument would be difficult to counter and that on its own the health issue would not be enough to result in a favourable outcome for Mr Mailley. In his assessment at the time, there was no serious prospect of success and the wiser course was to focus on the jurisdictional issues which could be pursued in the High Court.
[47] Mr Illingworth says further that he had a lengthy meeting with Mr Mailley where all the substantive issues were discussed including the health issue and a deliberate decision was made to abandon all three arguments that had been identified in the written submissions. Mr Illingworth also states that at the time Mr Mailley made that decision, he had a clear understanding of the situation and was in a fit state of mind to give instructions.
[48] In our view, this ground of appeal is unsustainable. We are satisfied that a deliberate decision was made not to pursue the s 8 application and in those circumstances the failure of the lower courts to address s 8 is not reviewable. In any event, having perused the factual material relating to good faith and delay ourselves, we agree with Mr Illingworth’s assessment that the application would not have succeeded. As regards the health issues, it is well established following the decision of this Court in Wolf v Federal Republic of Germany that the personal circumstances of the alleged offender can come within the statutory phrase “all the circumstances of the case”, and so be relevant to a s 8 inquiry, only if there is a clear nexus between those personal circumstances and the issues of delay and good faith.[9] Mr Mailley’s health issues in themselves could therefore never have resulted in a discretionary restriction under s 8.
Failure to address s 48(4)(a)(ii)
[49] While personal circumstances are generally outside the scope of s 8, they may however be relevant to s 48(4)(a)(ii) and it is in this regard that we consider Mr Mailley is on stronger ground.
[50] As previously mentioned s 48(4) states:
(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).
[51] Mr Mailley has produced medical reports which state he suffers from serious mental health issues and has attempted suicide on several occasions.
[52] In a report dated 15 March 2010, Dr Mendel a psychiatrist says:
Mr Mailley told me he has had psychiatric problems since 1965. He has been admitted to hospitals both in New Zealand and in Australia and has tried to commit suicide at least five times with subsequent admissions to ICUs. The description of the episodes that led to his hospitalizations and the prescription of a mood estabilizer for a prolonged period of time indicate a history of bipolar affective disorder. This impression is reinforced by Mr Mailley describing the period of being prescribed the mood estabilizer ‘Epilim’ (sodium valproate), the healthiest time he had since the onset of his problems in the 1960’s.
Over the last three years up to his imprisonment, Mr Mailley has maintained his improvement using cognitive-behavioural techniques and had not been on medication.
[53] The report which was obtained for the purposes of a bail hearing concludes:
In my view it is unlikely that Mr Mailley could survive being in custody again. The outcome of imprisonment for someone with the severity of his psychiatric and cardiac disorders would almost certainly be fatal.
[54] Attached to the report is a discharge form from Waitamata District Health Board describing Mr Mailley’s most recent suicide attempt which occurred in September 2009 six days after the extradition hearing had been completed in the District Court. The form discloses that Mr Mailley was admitted to the intensive care unit and required to be intubated following a drug overdose.
[55] The most recent report is from Dr Allen Fraser and is dated 29 January 2013. It states that as well as a bipolar disorder, Mr Mailley also suffers from post concussion syndrome arising from head injuries. Dr Fraser opines:
It is my opinion, therefore, that there is a very real likelihood of Mr Mailley committing suicide either to avoid being returned to Australia, or after being returned there.
[56] In addition to mental health problems, Mr Mailley also suffers from heart disease. In a letter dated 15 March 2010, his general practitioner expressed concern that his heart disease would substantially worsen through the stress of incarceration.
[57] Some but not all of this medical information was known to Mr Mailley’s previous legal representatives but it is common ground that they did not ever specifically turn their minds to the application of s 48(4)(ii). Some of the material was also before the District Court but never addressed in the context of s 48(4). As already mentioned, Judge Hubble identified health as an issue for the s 8 application, but following Wolf that was clearly incorrect. In the High Court, the mental health issues and the potential application of s 48(4) were not pleaded and therefore not addressed by Ellis J.
[58] Mr Cooke submitted that in all the circumstances it would be a serious miscarriage of justice for Mr Mailley to be extradited without a consideration of whether his situation merited a referral to the Minister.
[59] This was disputed by the New Zealand Police on several grounds:
- (a) The contents of the medical reports have never been tested by cross-examination.
- (b) Even if everything contained in the medical reports were accepted, a heightened risk of suicide cannot constitute “compelling or extraordinary circumstances” within the meaning of s 48(4)(a)(ii).
- (c) Section 48(4)(a)(ii) is only concerned with delaying the surrender or putting it on hold. The concluding words of s 48(4)(a)(ii) “before the expiration of a particular period” indicate the power is to be invoked only where there has been a temporary change of personal circumstances, not because of a permanent health condition.
[60] In support of her submission that the medical reports did not establish compelling or extraordinary circumstances necessitating delay, Ms Gordon referred us to the decision of Commonwealth of Australia v Brougham.[10] In that case, evidence was given of a suicide attempt and a history of depression. Judge Mathers however declined to refer a case to the Minister, stating:
[8] The difficulty for me is that while accepting Dr Williams’ conclusions, which I do, it will always be stressful for anyone to be deported. I accept in this case a heightened risk of suicide, but it seems to me that in terms of s 48(4)(a)(ii) it cannot be said that any acceptance of that itself amounts to compelling or extraordinary circumstances where it would be unjust or oppressive to surrender Mr Brougham to extradition. No-one normally wishes to be deported to face criminal charges. A threat of suicide cannot simply be made to avoid the consequences of alleged criminal activity.
...
[14] Australia obviously has proper medical care and psychiatric services. I have no doubt that the Australian authorities can take note of Mr Brougham’s circumstances and I can request that the New Zealand authorities ensure that the Australian authorities are aware of Mr Brougham’s suicidal tendencies.
[61] Judge Mather’s decision was subsequently endorsed by the High Court in the context of an application for extension of time to file a case stated appeal.[11]
[62] It was common ground that in order to qualify as extraordinary circumstances, the circumstances must be out of the ordinary, unusual, uncommon or striking, while “compelling” denoted “very persuasive” or “very strong”. We note the force of the points made by Judge Mathers and the need to be cautious. However, if the Judge was intending to suggest that mental health issues and suicide risk could never amount to compelling or extraordinary circumstances, then we must disagree. There is nothing that suggests “health” for the purposes of the section is limited to physical health and in our view it must be a question of fact and degree in each case. To hold otherwise would be to introduce an unwarranted distinction between physical and mental health and to deny the legitimacy of expert mental health evidence.
[63] In all the circumstances, we agree it would be unjust for Mr Mailley to be extradited without s 48(4)(a)(ii) being addressed when there are matters worthy of consideration and when the reason it has never been addressed before is not because of a deliberate decision but because it has been overlooked by both counsel and the Court.
[64] In coming to this conclusion, we have taken into account Ms Gordon’s further point about the concluding words of s 48(4)(a)(ii) “rendering it unjust or oppressive to surrender the person before the expiration of a particular period”. However, we prefer the interpretation advanced by Mr Cooke, namely that those words simply indicate that surrender might be permitted at a later point in time should the compelling or extraordinary circumstances be no longer operative. In other words, the phrase is there as a safeguard in case the condition is not permanent. It cannot mean the section only applies to conditions that have a temporal limit. Such an interpretation would have the absurd result that a person who was terminally ill could not avail themselves of the provision because their condition was permanent and had no time limit other than death. Parliament cannot be taken to have intended an absurd result. The fact that “age” is a triggering circumstance also supports Mr Cooke’s interpretation.
[65] Having decided that s 48(4)(a)(ii) requires to be addressed, the next issue is whether another hearing is required and if so in which court.
[66] Mr Cooke suggested that the medical reports were so compelling it would not be necessary to have another hearing. He submitted that the facts spoke for themselves and that not only did Mr Mailley have genuine suicidal ideation but he had actually made a very serious attempt to take his own life. It was more than just a risk. Mr Cooke further submitted that the most appropriate course of action would be for this Court rather than the District Court to undertake the evaluation exercise.
[67] In our assessment however, Mr Cooke’s submissions overstate the strength of the reports. Apart from the one documented suicide attempt, the other attempts are all self reported. Further in the case of the one documented attempt, the hospital records show Mr Mailley’s attempt as being due to an argument with his partner, not the extradition hearing. We note too that Mr Mailley has also survived two periods of imprisonment. The Police should have the opportunity of being able to call its own expert evidence and to be able to cross-examine the report writers. The Police may also wish to call evidence about the mental health facilities in Queensland prisons. In short, our judgment is that the issues are worthy of ventilation but they must be ventilated.
[68] Initially, our view was that rather than remit the matter back to the District Court, the hearing could be held in this court. We were conscious of the protracted nature of these proceedings and anxious to avoid any further delay. A hearing date was set in this Court and timetabling directions were made.
[69] However, subsequently the Police raised questions about this Court’s jurisdiction and both parties as well as Mr Cooke expressed a preference for the matter to be remitted to the District Court. On an appeal, this Court has all the powers of the decision maker and accordingly we are satisfied that we did have jurisdiction to hear the matter. However, an important consideration is that were we to undertake the hearing it would truncate Mr Mailley’s rights of appeal. In light of the parties’ concerns, we have therefore decided to deal with the matter by remitting it back to the District Court.
Result
[70] The appeal is allowed and the decision of the High Court and the surrender order made in the District Court are quashed. We remit the proceeding back to the District Court, but solely for the purposes of considering whether the case should be referred to the Minister of Justice under s 48(4)(a)(ii) because of Mr Mailley’s health. The finding of the District Court that Mr Mailley is eligible for surrender under s 45 is confirmed.
[71] Mr Mailley represented himself and there will therefore be no order as to costs.
[72] Finally, we wish to record our appreciation of the very constructive role played by Mr Cooke at the hearing and his helpful submissions. His assistance has been invaluable both to the court and to Mr Mailley.
Solicitors:
Meredith
Connell, Auckland for Second Respondent
[1] New Zealand Police v Mailley DC North Shore CRI-2000-063-544086, 11 September 2009.
[2] Mailley v New Zealand Police [2011] 3 NZLR 223 (HC).
[3] Part 4 also currently applies to extradition requests from the United Kingdom, the Pitcairn Islands and the Cook Islands.
[4] The discretionary restriction under s 8(2) is not relevant to this case.
[5] Mailley v General Manager, Auckland Central Remand Prison HC Auckland CIV-2008-404-8316, 17 December 2008.
[6] Mailley v District Court at North Shore [2013] NZCA 6.
[7] Summary Proceedings Act 1957, s 13.
[8] For a similar analysis in a different context, see Department of Corrections v Hall [2012] NZCA 309 at [16]–[19].
[9] Wolf v Federal Republic of Germany (2001) 19 CRNZ 245.
[10] Commonwealth of Australia v Brougham [2009] DCR 753.
[11] Brougham v Commonwealth of Australia HC Christchurch CRI-2009-409-191, 24 February 2010.
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