R v Hartley

• Jurisdiction: New Zealand
• Judgment Date: 05 August 1977
• Date: 05 August 1977
• Court: Court of Appeal

New Zealand, Court of Appeal.

(Richmond P., Woodhouse and Cooke JJ.)

R

and

Hartley

Jurisdiction Executive Consequences of illegal arrest Defendant illegally seized in foreign country and returned to New Zealand Whether circumstances of return to New Zealand deprives New Zealand courts of jurisdiction Whether discretion to discharge the defendant

Extradition Conditions Return of fugitive offender other than by extradition Disguised extradition The law of New Zealand

Summary: The facts:Hartley was charged with having committed a murder in New Zealand. The New Zealand police also wanted to interview Bennett, whom they suspected of having been an accomplice. Bennett went to Australia, where the Melbourne police, acting on a request from the New Zealand police, detained him and put him on a plane for New Zealand. No request for Bennett's extradition was ever made. On his return to New Zealand Bennett was arrested, and subsequently convicted, for murder. He appealed, inter alia, on the ground that the Court had had no jurisdiction to try him, because he had been illegally returned to New Zealand.

Held:Bennett's appeal was allowed and his conviction quashed. The Court held that some of the evidence against him should not have been admitted and the conviction had to be quashed on that ground. On the jurisdiction point, the Court stated that:

(1) The Fugitive Offenders Act 1881 (United Kingdom) and the Fugitive Offenders Amendment Act 1976 (New Zealand) laid down the correct procedure for the return of a fugitive offender from another Commonwealth State. The action of the New Zealand police in Bennett's case ignored the requirements of these statutes.

(2) The fact that Bennett had been returned to New Zealand in breach of the law did not, however, deprive the New Zealand courts of jurisdiction. Bennett had been lawfully arrested after his return to New Zealand. That was sufficient to give the courts jurisdiction to try him, notwithstanding the illegal manner in which he had been returned to the country.

(3) Nevertheless, the Court had a discretion to discharge an accused in cases where the behaviour of the authorities amounted to an abuse. The circumstances of Bennett's case were such that had the trial court been asked to exercise this discretion in his case it could properly have done so. However, no such application had been made to the trial court. Since the appeal had been allowed on another ground it was unnecessary to determine whether the jurisdiction point alone would have justified quashing the conviction.

The following is the text of the relevant part of the judgment of the Court, delivered by Woodhouse J., who dealt with Hartley's appeal and then continued.

Bennett's appeal

There remains for consideration the appeal against conviction by Bennett. It rests upon two claims. First, that without warrant or the least vestige of any lawful authority he was taken in charge by police officers in Melbourne: that this was done at the express request of the police in New Zealand; and that he was then arbitrarily delivered to them in this country. The second point concerns the acceptance in evidence of certain statements he made to the police after he had returned here. The matter developed in the following way.

The police seem to have suspected at an early stage that Bennett had been involved in the attack on the Prospect Terrace house. So he was interviewed by two detectives at his home at 4.40 pm on Monday 29 Decembera little more than 12 hours after it had taken place. But they learned nothing from him and agreed that there was no reason why he should not proceed with plans he had made to leave the Auckland district with his wife for a short holiday. Within a day or so he did that. He returned to Auckland on Saturday 3 January and then decided with his wife that he should travel to Melbourne where he could stay with her sister. He later explained that he intended to return to New Zealand to recommence his work on 19 January, after the expiration of his annual leave; and that he had gone to Melbourne to think things out, as he put it. He left for Melbourne by air on the following night, 4 January, but within 48 hours of his arrival at Melbourne several members of the local police force arrived at the home of his sister-in-law. It was then about midnight and he was in bed. They required him to dress and go with them at once to a police station. He said he left the place with a detective each side of me, who had holds...