Smith v Police [2014] NZHC 2676 (30 October 2014)

Last Updated: 3 November 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-60 [2014] NZHC 2676

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:	21 October 2014 (by telephone)
Counsel:	M D Talbot for Appellant R G Douch for Crown
Judgment:	30 October 2014

_{JUDGMENT OF GODDARD J}

This judgment was delivered by me on 30 October 2014 at 1.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Talbot Law Limited, Hamilton for Appellant

Crown Solicitor’s Office, Hamilton for Respondent

SMITH v NEW ZEALAND POLICE [2014] NZHC 2676 [30 October 2014]

Introduction

[1] This is an application for leave to appeal to the Court of Appeal. In a decision released on 7 July 2014 I confirmed the decision of Judge Thomas in the District Court, in which he found Mr Smith to be eligible for surrender to the United Kingdom.

[2] The Summary Proceedings Act 1957 applies.¹ For the Court to grant leave to appeal there must be a question of law which, by reason of its general and public importance, or any other reason, ought to be submitted to the Court of Appeal.²

Background

[3] The background to Mr Smith’s case was summarised in my decision as

follows:³

... 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.

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.

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.

¹ _{The proceedings in relation to the appeal were commenced before 1 July 2013.}

² _{Summary Proceedings Act 1957, s 144.}

³ Smith v Police [2014] NZHC 1577 at [2]–[8].

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.

It is unnecessary to document the next steps in the proceedings in New

Zealand except to say that these were expeditiously undertaken.

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 case stated on appeal to the High Court

[4] In the case stated on appeal to the High Court, 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.

[5] Two questions were identified for the High Court to determine: first, was the District Court Judge right to find that Mr Smith was the person named in the warrant? Second, was the Judge right to find that the delay in prosecuting the request, including the period of delay that is unexplained, is not a circumstance making it unjust or oppressive to determine that Mr Smith is eligible for surrender?

[6] Both questions were answered in the affirmative. In relation to the first question, I found that the defects on the face of the warrant to be 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.

[7] In relation to the second question, the central issue was whether s 8(1)(c) of the Extradition Act 1999, which provides for a discretionary restriction on surrender, had been correctly applied by the District Court. The restriction 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.

[8] Judge Thomas had made a number of findings in relation to the issue of delay, including as to whether the effect of delay on Mr Smith would be oppressive. His findings were as follows:

[42] Other than providing the chronology set out by Detective Jennings in her affidavit, United Kingdom police provide no other explanation as to why it has taken five years to reach this point in the proceedings. In the absence of such information, the respondent can understandably feel that the United Kingdom authorities should have been able to progress matters more quickly. The question is whether this delay makes it unjust or oppressive to surrender the respondent, having regard to all of the circumstances of the case.

[43] The respondent firstly argues that the age and maturity of each of the five complainants will have altered greatly over the intervening time. When they first complained to the police, they were aged in their low to mid teens. Some will now be in their mid twenties. The delay represents therefore a significant proportion of the complainants’ lives. However there is nothing to suggest that this may be detrimental, unjust or oppressive to the respondent. One can assume some dulling of the complainants’ memories over time, but there is nothing to suggest anything more than that in this case.

[44] The respondent argues that, had he known earlier that he would be facing prosecution, he would have more readily maintained contact with people in the United Kingdom who may assist in his defence, or would more easily have been able to establish contact with such people. However he provides no evidence regarding who such people may be, and what particular difficulties do arise as a result of the passage of time.

[45] The respondent argues that the passage of time has allowed him to settle into a new life in New Zealand, such that the shock of now facing extradition and prosecution has caused him significant psychological stress. The police do not dispute that this has been the effect of these proceedings. The respondent has provided medical records to that effect. It is understandable that anyone accused of sexual offending against children may suffer considerable stress. What is absent from the material before me

is any evidence establishing how much of the psychological stress the respondent suffers can be attributable to the delay as opposed to facing charges. I am prepared to infer that the respondent may have acquired a level of comfort over time that he may not face charges, and that in the meantime he has settled peacefully in New Zealand with a new life. I am therefore prepared to infer that at least some of the psychological stress he suffers from can be attributed to delay. However I am unable to infer that it is to such an extent that his surrender would be unjust or oppressive.

[46] In his affidavit and counsel’s submissions, the respondent claimed that the delay by the United Kingdom police was undue. That is not the test for this Court under s 8(1)(c). Taken individually and cumulatively, the grounds advanced by the respondent do not satisfy me, having regard to all the circumstances of the case, that the amount of time that has passed since the offences are alleged to have been committed make his surrender unjust or oppressive.

[9] I respectfully concurred with these findings in my judgment on appeal, as follows:

[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.

The application

[10] Mr Talbot advanced one ground in support of Mr Smith’s present application for leave to appeal to the Court of Appeal. This concerned the effect of delay on Mr Smith’s personal life: as opposed to whether the delay was relevant to fair trial considerations. The question was stated as follows:

Whether the High Court Judge erred at law by failing to analyse the evidence to assess whether the delay by the United Kingdom Police in requesting extradition of the Appellant was a circumstance making it unjust or oppressive to determine the Appellant is eligible for surrender.

[11] Mr Talbot submitted that the point that unreasonable delay on the part of the prosecuting authority of the requesting country can make it unjust or oppressive to grant the request did not receive sharp focus in the District Court and was not the

subject of comment in the District Court judgment. He said the High Court was obliged to consider the argument that the delay itself made the granting of the request unjust or oppressive and to make an express finding on this point.

[12] Mr Talbot relied on the submissions he had advanced before Judge Thomas and before me, with additional reference to the decision of the Queens Bench Division in R v Secretary of State ex p Patel.⁴ In that case, Mr Patel was alleged to have committed serious offences of dishonesty in the course of his employment prior to 1983. Extradition proceedings were commenced in 1985 but were discontinued by the District Attorney’s office because the complainant himself became the subject

of charges in the United Kingdom. Although Mr Patel was told of the decision not to proceed further against him, he was unaware that the decision might be reversed until his arrest in December 1991. Thus for six years he was permitted to believe that the attempt to extradite him had been discontinued. In the interim, Mr Patel had married in London and had a child.

[13] The Minister signed the application for extradition on the basis that the United States courts would give Mr Smith a fair hearing on the issue of delay. Mr Patel applied for judicial review of the decision. The Court upheld the application for judicial review, finding that the Minister had not commented on the length of the delay in instituting proceedings or sought to analyse its causes. The reasons for the delay and the events occurring in Mr Patel’s life during the delay, were held to make it unreasonable to conclude that it would not be oppressive by reason of passage of time to extradite him.

[14] Mr Talbot argued that the decision in Patel provided authority for the proposition that where there is executive delay this may be considered oppressive.

[15] In response, Mr Douch submitted that the question of law as posed was not a question of law and that relevant findings on delay had been made both by me in the

_{High Court and by Judge Thomas in the District Court.}

⁴ R v Secretary of State ex p Patel (1995) Admin 7 LR 56.

Standard for leave to appeal to the Court of Appeal

[16] The proceedings in relation to the appeal were commenced before 1 July

2013. Consequently, the Summary Proceedings Act 1957 applies. Under s 144, with the leave of the High Court, the applicant may appeal to the Court of Appeal against any determination of the High Court on a question of law arising in any general appeal provided that the question of law involved in the appeal is one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

Discussion

[17] Mr Talbot’s submission that neither I nor Judge Thomas had made relevant findings on the effect of delay on Mr Smith’s personal life as well as on his fair trial prospects is not soundly based. The relevant paragraph in Judge Thomas’ decision is [45], as set out above. The Judge’s conclusions in that paragraph as to the effect of delay on Mr Smith were expressly adopted and relied upon by me at [40] of my judgment.

[18] The question posed by Mr Smith in his appeal is whether the effect of delay on his life and well-being meets the threshold required to satisfy the Court that extradition would be oppressive or unjust in his case. This is essentially a question of fact in each case.

[19] Even if that were not so, it would not constitute a question of sufficient general or public importance to justify a second appeal. The factors that distinguish Mr Smith’s circumstances from those of Mr Patel are significant. In particular, the charges faced by Mr Smith are more serious and the period of delay is shorter. As Judge Thomas observed, there is an absence of evidence establishing the extent to which the psychological stress Mr Smith suffers from can be attributed to the delay, as opposed to the stress of facing charges. While Mr Smith has made significant changes to his personal situation by acquiring a family in New Zealand, those factors cannot alter the balance in favour of extradition. None of the circumstances relied upon by Mr Smith, singly or together, provide a sound basis for the conclusion that extradition would be unjust or oppressive.

Result

[20] The application for leave to appeal to the Court of Appeal is dismissed. Mr Smith was released on bail pending the determination of his application for leave to appeal to the Court of Appeal. Mr Smith now has a period of 21 days within which he can apply directly to the Court of Appeal for special leave to appeal against my substantive decision. Bail is extended for that period. Should Mr Smith decide to apply for special leave, bail is extended until determination of his application by the Court of Appeal.

Goddard J