Ortmann v United States of America

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 20 December 2018
• Neutral Citation: [2018] NZSC 125
• Docket Number: SC 54/2018 SC 56/2018 SC 57/2018 SC 58/2018
• Court: Supreme Court
• Date: 20 December 2018

Between

Mathias Ortmann

First Applicant

Bram Van Der Kolk

Second Applicant

Finn Habib Batato

Third Applicant

and

United States of America

First Respondent

District Court At North Shore

Second Respondent

Between

Finn Habib Batato

Applicant

and

United States of America

Respondent

Between

Mathias Ortmann

First Applicant

Bram Van Der Kolk

Second Applicant

and

United States of America

Respondent

Between

Kim Dotcom

Applicant

and

United States of America

Respondent

Between

Kim Dotcom

Applicant

and

United States of America

First Respondent

District Court At North Shore

Second Respondent

[2018] NZSC 125

Court:

Elias CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 54/2018

SC 55/2018

SC 56/2018

SC 57/2018

SC 58/2018

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Extradition application — whether the Supreme Court had jurisdiction to consider an appeal — interrelationship between the Extradition Act 1999 and Criminal Procedure Act 2011.

Counsel:

G M Illingworth QC, P J K Spring and A K Hyde for Messrs Ortmann and van der Kolk

A G V Rogers for Mr Batato

R M Mansfield and S L Cogan for Mr Dotcom

D J Boldt, F R J Sinclair and Z A Fuhr for United States of America

The Court has jurisdiction to hear the proposed appeals.

JUDGMENT OF THE COURT

REASONS

(Given by William Young J)

The issue

1 The United States of America has requested the extradition of the applicants. Following a lengthy hearing, Judge Dawson in the District Court determined that they were eligible for surrender; a determination made pursuant to s 24 of the Extradition Act 1999. 1 Section 68 of the Extradition Act provides for a right of appeal to the High Court against such determinations, a right which they exercised unsuccessfully. 2 The applicants were then given leave by the High Court to bring second appeals, on two questions of law, to the Court of Appeal. 3 Those appeals were pursuant to s 69(1)(p) of the Extradition Act and were also unsuccessful. 4

2 They now seek leave to appeal to this Court, but there is dispute whether there is jurisdiction to entertain the proposed appeals in respect of the extradition decision, a dispute which this judgment addresses. 5

The key legislative provisions

3 The Supreme Court is a creature of statute. Accordingly, an application for leave to appeal can only be granted where there is statutory jurisdiction to do so. 6

4 It is common ground that the case falls to be determined by reference to the law as it was when the extradition proceedings commenced, that is in 2012. 7 Importantly, this was before the Criminal Procedure Act 2011 came into effect on 1 July 2013.

5 In 2012, ss 7 and 10 of the Supreme Court Act 2003 8 provided:

7 Appeals against decisions of Court of Appeal in civil proceedings

The Supreme Court can hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against any decision made in the proceeding, unless–

• (a) an enactment other than this Act makes provision to the effect that there is no right of appeal against the decision; or

• (b) the decision is a refusal to give leave or special leave to appeal to the Court of Appeal.

10 Appeals against decisions in criminal proceedings

The Supreme Court can hear and determine appeals authorised by–

• (a) Part 13 or section 406A of the Crimes Act 1961; or

• (b) section 144A of the Summary Proceedings Act 1957; or

• (c) section 10 or 10A of the Court Martial Appeals Act 1953.

6 The Supreme Court Act defined “civil proceedings” as proceedings which are not criminal, but did not define criminal proceedings. The parties have proceeded on the basis that proceedings under the Extradition Act are criminal. The New Zealand jurisprudence on this issue arose in the context of the generally expressed right of appeal to the Court of Appeal conferred by s 66 of the Judicature Act 1908 and earlier provisions to the same effect. The position adopted by the courts was that s 66 did not extend to criminal cases, 9 which were held to encompass habeas corpus 10 and judicial review 11 proceedings issued in connection with extradition.

7 Some doubt as to this was, however, expressed by Cooke P in Flickinger v Crown Colony of Hong Kong. 12 He saw force in the argument that: 13

… to give full measure to the rights specified in s 23(1)(c) [of the New Zealand Bill of Rights Act 1990], s 66 of the Judicature Act should now receive a wider interpretation than has prevailed hitherto.

However, final resolution of the issue was not necessary in the context of the particular case.

8 As well, the approach taken by this Court in Mafart v Television New Zealand Ltd 14 suggests that in the case of proceedings which are not criminal in the orthodox sense, caution is required before adopting a criminal classification which has the effect of precluding appeal. 15 In that case, a contested application for access to court exhibits in criminal proceedings was held to be civil in character. 16

9 In the very particular statutory context of the Supreme Court Act, we consider that a strong argument could be made for the view that “criminal proceedings” are confined to proceedings under the three statutes referred to expressly in s 10. This interpretation would explain why there is no stand-alone definition of “criminal proceedings”. It also is consistent with the deliberate policy — adopted in the Supreme Court Act but now somewhat relaxed — of excluding rights of appeal to the Supreme Court in respect of, for instance, decisions of the Court of Appeal on interlocutory criminal appeals. 17 If this view is correct, there is, as we will explain, a right of appeal to this Court under s 7 of the Supreme Court Act. 18 What is meant by “criminal proceedings” could conceivably be of significance in future cases; this given that ss 65–71 of the Senior Courts Act 2016, in providing for the jurisdiction of this Court, still draw a distinction between civil and criminal proceedings. So, it is appropriate to flag that there remains an issue as to what constitutes “criminal proceedings”.

10 It not having been argued that s 7 applies, we propose to deal with the issue under s 10 — that is, on the basis that extradition proceedings are criminal in nature for the purposes of the Supreme Court Act. On this basis, the case turns on whether the proposed appeals are “authorised by” s 144A of the Summary Proceedings Act 1957.

11 The relevant provisions of the Extradition Act were as follows:

68 Appeal on question of law only by way of case stated

(1) This section applies if a District Court determines under section 24 or section 45 that a person is or is not eligible for surrender in relation to any offence or offences for which surrender is sought, and either party considers the determination erroneous in point of law.

(2) If this section applies, the party may appeal against the determination to the High Court by way of case stated for the opinion of the High Court on a question of law only.

…

69 Application to appeal of certain provisions of Summary Proceedings Act 1957 …

(1) The following provisions of the Summary Proceedings Act 1957 … apply with any necessary modifications to an appeal under this Part as if it were an appeal underPart 4 of that Act against the determination by a District Court of an information or complaint:

(a) section 107(3) to (8) (Appeal on question of law only by way of case stated):

…

(p) section 144 (Appeal to Court of Appeal).

These sections had not been materially amended since the enactment of the Extradition Act.

12 Section 107 of the Summary Proceedings Act provided for appeals to the High Court against determinations of the District Court by way of case stated. And s 144 of the Act provided a right of appeal (with leave) from decisions of the High Court on appeal to the Court of Appeal. This section and ss 144A and 144B provided:

144 Appeal to Court of Appeal

(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court undersection 107 or against any determination of the High Court on a question of law arising in any general appeal:

provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that court, and the High Court may grant leave accordingly if in the opinion of that court 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.

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that court, for special leave to appeal to that court, and the Court of Appeal may grant leave accordingly if in the opinion of that court 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.

144A Appeal to Supreme Court

(1) With the leave of the Supreme Court, either party may appeal to the Supreme Court against–

…

(c) a decision of the Court of Appeal on an appeal under section 144(1).

…

144B Powers of Court of Appeal and Supreme Court on appeal

On an appeal under section 144 or section 144A to the Court of Appeal...