Mailley v District Court at North Shore

• Jurisdiction: New Zealand
• Judge: Wild J
• Judgment Date: 23 March 2016
• Neutral Citation: [2016] NZCA 83
• Date: 23 March 2016
• Court: Court of Appeal
• Docket Number: CA716/2014

[2016] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, Wild and Kós JJ

CA716/2014

Between

Martin James Mailley

Appellant

and

District Court at North Shore

First Respondent

and

New Zealand Police

Second Respondent

Counsel:

FMR Cooke QC for Appellant

No appearance for First Respondent (abides the Court's decision)

N E Walker and K E Hogan for Second Respondent

Appeal against a High Court (“HC”) decision which confirmed a District Court (“DC”) decision not to refer the appellant's case to the Minister of Justice, pursuant to s48(4)(a)(ii) Extradition Act 1999 (“EA”) (referral of case to Minister in certain circumstances — relating to the age or health of the person, it would be unjust or oppressive to surrender the person) — the appellant was a New Zealand citizen — the Commonwealth of Australia was seeking to extradite him to Australia to face fraud charges in Queensland — the appellant suffered from mental health problems and heart disease — whether the DC and HC had erred in their understanding of the scope of the Court of Appeal's remit to the DC — whether the HC erred in upholding the DC's decision not to refer M's case to the Minister, pursuant to s48(4)(a)(ii) EA.

JUDGMENT OF THE COURT

• A Leave is granted to the appellant and the second respondent to adduce fresh evidence.

• B The appeal is dismissed. C No order as to costs.

REASONS OF THE COURT

(Given by Wild J)

Introduction

1 This is an extradition case with a tortuous history. This is the second time the case has been appealed to this Court. On this second appeal three main issues are raised:

• (a) Scope of remit: What was the scope of this Court's remittal of the case to the District Court in its 2013 judgment following the hearing of the first appeal? 1 More specifically, did the District Court, 2 and subsequently the High Court, 3 correctly understand the task remitted?

• (b) Interpretation of s 48(4)(a)(ii) of the Extradition Act 1999 (the Act): Did the District Court, and subsequently the High Court, correctly interpret s 48(4)(a)(ii)? 4

• (c) Relief: If the answer to either issue (a) or (b) is ‘No’, what form of relief should this Court grant?

2 As will become clear, issues (a) and (b) are closely related.

Fresh evidence

3 By application filed on 17 December 2015, Mr Cooke QC applied under r 45 for leave to adduce fresh evidence in support of the appeal. This comprised second affidavits of Dr Graeme Whittaker and Dr Rui Mendel, both sworn or affirmed on 15 December 2015. Counsel for the second respondent objected to these. We accepted them provisionally. These affidavits essentially update the appellant's medical situation. We therefore grant the appellant leave to adduce this further evidence. During the hearing Ms Walker handed up an email from the office of the Director of Public Prosecutions in Queensland advising on the sentence Mr Mailley is likely to face if he is convicted there. We accepted it on the same basis as the

appellant's fresh evidence, and now make an order granting the second respondent leave to adduce this further document in evidence.

Background

Factual

4 Mr Mailley is a New Zealand citizen. The Commonwealth of Australia is seeking to extradite Mr Mailley to Australia to face fraud charges in Queensland. The charges arise out of alleged offending between 1999 and 2002. In a judgment delivered in the North Shore District Court on 16 September 2009, Judge Hubble summarised the charges and the background to them as follows: 5

[1] Martin James Mailley holds a passport in that name. He also holds passports in the names of James Martin Caldwell, Martin James Craigie and Francis John Springall and has used other aliases, including James Houston. As he was born in New Zealand under the name of Martin James Mailley, I will continue to adopt that name. Mr Mailley is wanted by the Queensland Police for alleged fraudulent dealings involving more than $2 million. Police allege that, prior to his first arrest in Australia, he was in receipt of welfare but was living on fraudulently obtained credit cards. When first arrested he had numerous drivers licenses and more than 18 credit cards in 12 different identities. Charges in relation to possession of those cards and the use of them and numerous charges of breach of bail, remain unresolved in the Lower Court in Australia.

[2] On arrest, Mr Mailley, was also charged with eleven counts of breaching s 408(C)(1)(B) of the Queensland Criminal Code. These charges involved fraudulent dealings successfully carried out by Mr Mailley and his de facto partner, Sabrina Nutarelli, or attempts by them to carry out these dealings, which were interrupted at the time of his arrest.

[3] The charges carry a maximum 10-year sentence or 7-year sentence respectively.

5 Ms Nutarelli pleaded guilty to her part in the fraudulent dealings and was convicted and sentenced to three years imprisonment. Her sentence was suspended after she had been in prison for six months.

6 Although the Australian Police assert Mr Mailley also confessed to his involvement in the frauds, he did not plead guilty and was committed to the Beenleigh District Court in Queensland for trial. He was also charged with

numerous breaches of bail, usually involving his changing address without notice or committing further fraud offences. Despite this, he was again granted bail, but again breached it. He was only located by the police after some months, as a result of his committing or attempting to commit further fraud offences. He was again released on bail to appear in court on 30 March 2005. When he did not appear a warrant was issued for his arrest.

7 In the course of searching again for Mr Mailley, the Australian police discovered that “many hundreds of thousands of dollars” had been transferred from Australia to numerous New Zealand bank accounts in the name of Mr Mailley or members of his family. 6 The police correctly concluded that Mr Mailley had fled to New Zealand and sought his extradition.

Procedural

8 Upon application under s 41 of the Act on 14 March 2008, Judge Morris endorsed the Australian arrest warrant to authorise its execution in New Zealand. 7

9 Mr Mailley was arrested on 2 July 2008. That same day the police applied to the District Court under s 45 of the Act for the Court to determine Mr Mailley's eligibility for surrender.

10 Almost a year passed before that s 45 eligibility application came on for hearing in the District Court. Two days were allocated in early June 2009, but the hearing, which was before Judge Hubble, ran over four days and was not completed until early September 2009. We need not go into the events that occurred over that period: they are chronicled in Judge Hubble's judgment. 8 It is relevant that Mr Mailley was in custody for about half that period (until 17 December 2008), and then on bail.

11 In a decision delivered on 16 September 2009, Judge Hubble reserved to Mr Mailley leave to apply under s 8 of the Act, which deals with discretionary

restrictions on a surrender. 9 Subject to the outcome of any such application, the Judge determined that Mr Mailley was eligible for surrender.

12 A hearing of the s 8 issues foreshadowed by Mr Mailley was scheduled for March 2010.

13 Very shortly before the scheduled hearing (two Australian police witnesses, required by Mr Mailley for cross-examination, had already flown to New Zealand for the hearing), Mr Mailley abandoned his s 8 application, advising he proposed to appeal Judge Hubble's decision under s 45 of the Act. The fixture for the s 8 application was then vacated and on 17 March 2010 Judge Hubble made final his determination of Mr Mailley's eligibility for deportation. A surrender order and a warrant for Mr Mailley's detention were then issued.

14 Before the surrender order took effect, 10 Mr Mailley appealed to the High Court by way of case stated on two questions of law. Neither question is of any continuing relevance. The case stated was filed in the High Court in August 2010.

15 In September 2010, Mr Mailley applied to the High Court for judicial review, raising essentially the same two issues the District Court had stated for decision of the High Court.

16 In a judgment delivered on 12 April 2011, Ellis J answered the questions in the case stated adversely to Mr Mailley and dismissed his application for judicial review. 11

17 Mr Mailley appealed to this Court against the dismissal of his application for judicial review. That appeal was dealt with in a judgment of this Court delivered on 28 June 2013. 12 Relevant points in this judgment are:

• (a) It records that the Court had earlier, over the opposition of the New Zealand police, granted Mr Mailley leave to amend his grounds of appeal to include, as a 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 [Act]”? 13

• (b) As to the alleged failure of the lower Courts to address the s 8 issues, the Court held:

  [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.

  …

  The Court went on to express the view that Mr Mailley's s 8 application would not, in any event, have succeeded.

• (c) In dealing with the new ground of appeal of failure to address s 48(4)(a)(ii), this Court indicated “we consider Mr Mailley is on stronger ground”. 14 The Court set out s 48(4) and summarised the evidence before it about Mr Mailley's mental and physical health. These are the critical paragraphs in the section of the judgment that followed:

  [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...