Mailley v District Court at North Shore [2013] NZCA 6 (12 February 2013)

Last Updated: 18 February 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA288/2011 [2013] NZCA 6

BETWEEN MARTIN JAMES MAILLEY Appellant

AND DISTRICT COURT AT NORTH SHORE First Respondent

AND THE NEW ZEALAND POLICE Second Respondent

Hearing: 11 February 2013

Court: Randerson, Stevens and French JJ

Counsel: Appellant in Person M Lyttelton in attendance No appearance for First Respondent J C Gordon QC and K E Hogan for Second Respondent F M R Cooke QC as Amicus

Judgment: 12 February 2013 at 10am

INTERIM JUDGMENT OF THE COURT

1. The amended affidavit of Mr Minchin may be adduced on appeal.
2. The affidavit of Mr Lyttelton may not be adduced on appeal.

100. The appellant is permitted to amend the grounds of appeal as set out in [10](3) of this judgment.

4. Further orders and directions are made in terms of [10](4), (5) and (6) and [11] of this judgment.

____________________________________________________________________

REASONS

(Given by Randerson J)

Introduction

[1] The appellant, Mr Mailley, has appealed from a decision of Ellis J in the High Court. The High Court decision was itself an appeal by way of case stated from decisions of Judge Hubble in the District Court in which he made an order under the Extradition Act 1999 (the Act) for Mr Mailley’s extradition to face fraud charges brought against him in Queensland. The High Court also heard at the same time an application by Mr Mailley for judicial review in relation to aspects of Judge Hubble’s decisions.
[2] Mr Mailley has applied for leave to adduce two further affidavits on appeal and for leave to amend the grounds of appeal to include grounds referable to the further affidavit material. The second respondent opposes the introduction of those affidavits and the amended grounds of appeal. Mr Cooke QC, as amicus, generally supports the applications made by Mr Mailley. If the applications are successful (wholly or in part) then the second respondent seeks to introduce further material in response.
[3] The issues Mr Mailley now seeks to raise are in three main areas:

(a) Complaints about his counsel’s conduct.

(b) The absence of consideration of issues under s 8 of the Act in the lower courts.

(c) Whether the case should have been referred to the Minister under s 48(4) of the Act.

The affidavits

[4] Mr Lyttelton (who was given permission for the purpose of today’s hearing to appear as a McKenzie friend for Mr Mailley) has sworn an affidavit in which he details complaints which Mr Mailley has about two counsel who appeared on his behalf at various stages of the extradition proceedings (Messrs T Ellis and A Shaw). These counsel appeared on Mr Mailley’s behalf on the first two days of the hearing in the District Court on 4 and 5 June 2009. The proceedings were then adjourned until 31 August 2009 at which time Mr Shaw appeared. He sought and was granted leave to withdraw and Mr G Minchin took over as counsel for Mr Mailley. Mr Minchin has sworn an affidavit in which he said that he was not as well prepared as he might have been and that he omitted to invite the Judge to refer the case to the Minister under s 48(4) of the Extradition Act.
[5] Judge Hubble gave a reserved judgment on 11 September 2009 in which he concluded that all of the elements required by s 45 of the Act were established save for any issues arising under s 8 of the Act (in terms of which the court has a discretion to decline to order the surrender of the extraditee on specified grounds). A timetable order was made to enable evidence and submissions to be introduced to deal with that topic.
[6] The matter came before the court again on 17 March 2010. Ms Gordon QC advises the Court that, on that date, Mr Illingworth QC appeared for Mr Mailley and withdrew the s 8 application. It seems that no application was made to have the case referred to the Minister under s 48(4). The Judge then made an order for Mr Mailley’s surrender.
[7] We do not consider it is appropriate to allow Mr Mailley to adduce Mr Lyttelton’s affidavit on the appeal. It addresses issues of complaints about counsel which are currently before the New Zealand Law Society for consideration. It is an issue which has never been raised or pleaded in the lower courts. We do not see Mr Mailley’s complaints (which relate primarily to fee issues) as being relevant to the appeal. Nor do we consider there is any sound basis to permit the grounds of appeal to be amended to enable Mr Mailley to raise these issues. We also foresee the real prospect that, in order to be fair to Messrs Ellis and Shaw, they would have to be permitted an opportunity to respond to the complaints. Those are all matters properly to be considered by the Law Society.
[8] However, despite Ms Gordon’s opposition and the arguments she has presented, we consider justice requires that Mr Mailley have the opportunity to put before the Court material relating to ss 8 and 48(4) of the Act. Mr Mailley must be at a real risk of imprisonment being imposed should he be extradited and convicted in Australia. It is important to ensure he has adequate opportunity to address issues of potential unfairness or injustice. Accordingly, we are prepared to grant leave for Mr Minchin’s affidavit to be placed before this court for the purposes of the appeal. We offer no view as to the merits of the new issues raised.
[9] Ms Gordon properly sought to have the opportunity to introduce material in response to the ss 8 and 48(4) issues. After some discussion with all parties and counsel about how this material should be placed before the court, Ms Gordon offered to facilitate the preparation of an agreed statement of facts describing the course of events in the District Court with particular focus on the ss 8 and 48(4) issues. Mr Mailley also confirmed through Mr Lyttelton that he was very willing to provide a waiver of privilege so that Mr Illingworth QC could file an affidavit explaining the circumstances relating to the issues under ss 8 and 48(4).

Disposition

[10] After discussion with all parties and counsel, we make the following formal orders and directions:

(1) The affidavit of Mr Lyttelton may not be adduced on appeal.

(2) The amended affidavit of Mr Minchin may be adduced on appeal.

(3) Mr Mailley is permitted to amend the grounds of appeal to include the following 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.”

(4) Mr Minchin is to provide forthwith to the second respondent a waiver of privilege in relation to his involvement as counsel for Mr Mailley (Ms Gordon will no doubt liaise with Mr Mailley to obtain the waiver of privilege in appropriate form).

(5) Ms Gordon is to liaise with Mr Mailley, Mr Lyttelton, Mr Cooke and Mr Illingworth to prepare and file an agreed statement of facts to cover the s 8 and s 48(4) issues as discussed above. This is to be filed and served if possible by Friday 15 February 2013, preferably with an accompanying affidavit by Mr Illingworth QC.

(6) The existing timetable for submissions is amended so that the second respondent is to file and serve submissions by Tuesday 19 February 2013. Mr Cooke QC and Mr Mailley will have until Friday 22 February 2013 to file and serve any reply submissions including any further submissions with regard to the amended grounds of appeal.

[11] A telephone conference before Randerson J at 3:00pm on Friday 15 February 2013 is to be arranged to review progress and to make any final orders needed.
[12] We record the court’s thanks for the co-operation of all parties in enabling a practical way forward to be reached.

Solicitors:
Meredith Connell, Auckland for Second Respondent