Radhi v Police Hc Ak

JurisdictionNew Zealand
CourtHigh Court
JudgeWylie J
Judgment Date11 February 2013
Neutral Citation[2013] NZHC 163
Docket NumberCRI 2012-404-000201
Date11 February 2013

[2013] NZHC 163

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000201

Maythem Kamil Radhi(Aka Maytham Kamil Radhi)
and
New Zealand Police
Counsel:

R Chambers and S D Withers for the Appellant

J C Gordon QC and W Fotherby for the Respondent

Distribution:

R Chambers:Roger.chambers@xtra.co.nz

S D Withers:vulcan.chambers@xtra.co.nz

J C Gordon QC:christine.gordon@meredithconnell.co.nz

W Fotherby: william.fotherby@meredithconnell.co.nz

Dominique Schwartz, ABC News: schwartzdominique@gmail.com;

schwartzdominique@abc.net.au); dominiqueschwartz@journalist.com;

Ian Steward, Fairfax Media: ian.stewar@fairfaxmedia.co.nz

Appeal from District Court decision finding that appellant was an extraditable person and eligible for surrender — appellant was charged in Australia where it was alleged he was involved in an attempt to smuggle people from Indonesia into Australia using a vessel which sank in rough seas, drowning the majority of passengers — for extradition, the alleged extradition offence had to be an offence in both the requesting and requested countries, for which the maximum penalty was imprisonment for not less than 12 months (s4 EA (meaning of extradition offence)) — Australian offence provision covered activities that occurred in Indonesia — relevant equivalent provision in NZ was s142(fa) Immigration Act 1987 (“IA”) (wilfully assisting arrival in NZ in non-complying manner) — sentence under s142(fa) was a fine or up to 3 months imprisonment — whether s142(fa) IA had extraterritorial reach — whether arrival in NZ was necessary for the offence — whether an attempted offence was sufficient — whether the judge erred in determining the multiplier provision in s144(1A) IA (general penalty for offences) for “each person” was intended to apply equally to the alternative sentences of a fine or a term of imprisonment.

At issue was: (i) whether s142(fa) IA had extraterritorial reach; (ii) whether arrival in NZ was a necessary element of the offence; (iii) whether an attempted offence of the nature set out in s142(fa) was sufficient; and (iv) whether the judge erred in determining that the multiplier provision in s144(1A) IA (general penalty for offences) for “each person” was intended to apply equally to the alternative sentences of a fine or a term of imprisonment.

Held: Section 142(fa) IA was part of a Bill debated as a matter of urgency in June 1999 after the NZ Immigration Service was advised of the potential arrival of a number of foreign nationals into NZ by boat and passed into law on the same day as it had its second and third readings. It was later repealed as from June 2002. It was clear from the wording of s142(fa) IA that it did have extraterritorial reach. The words “whether within NZ or otherwise” were a clear statement of Parliamentary intent, and it was not inconsistent with s6 Crimes Act 1961 (“CA”) (persons not to be tried in respect of things done outside New Zealand), as that section did not apply where the act was done or omitted was an offence by virtue of the CA or any other enactment. The wording of s142(fa) made it an offence to wilfully aid or assist another person to arrive in New Zealand, whether the acts done which constituted the aiding and assisting were done within New Zealand or otherwise. It was also consistent with the purpose of the IA (as amended in 1999) to hold that s142(fa) had extraterritorial effect.

Whether or not arrival in NZ was necessary in terms of s142(fa) determined whether the conduct constituting the alleged offence would, if proved, have constituted the offence constituted by s142(fa), given that the people R allegedly helped attempt to smuggle into Australia never arrived. There was significant and high authority to the effect that extradition laws should be liberally construed to achieve their purpose of bringing to justice those accused of serious crimes, and that extradition law should be given a broad and generous approach (e.g. Norris v Government of the United States of America). Precise equivalence between the offence alleged in each country was not required and s5 EA (interpretation provisions relating to offences) enjoined a “broad conduct approach” meaning the Court should examine all of the conduct on which the requesting state relied.

In this case all of the alleged actions attributed to R were said to have taken place in Indonesia. Though finely balance, the conduct attributed to R did not, at the relevant time, constitute an offence in NZ under s142(fa) because arrival in NZ was an integral part of the offence created by s142(fa), and required the consequence of arrival to flow from the accused's conduct of wilfully aiding or assisting before the offence was complete. The words “to arrive in NZ” were used in the section, and bore their ordinary meaning as they were not further defined by the IA. It was instructive that s142(fa) was subsequently broadened by amendment to include “whether or not the other person in fact enters NZ”.

The Judge also erred when he concluded that an attempted offence of the nature set out in s142(fa) was made out and sufficient for there to be conduct of the alleged extradition offence. The IA did not make it an offence to attempt to breach s142(fa). While there was authority in other jurisdictions that inchoate crimes should be prohibited in the same way as their choate equivalents, s9 CA (offences not to be punishable except under New Zealand Acts) provided that no-one was to be convicted of any offence at common law.

In terms of the whether the multiplier provision in s144(1A) IA, the multiplier, and its phraseology, was unusual. Again the matter was finely balanced, and it fell to be decided, at least in part, by the location, and absence, of commas. There was little to be gleaned from the text of the IA and other penalties imposed did not contain multiplier provisions. The penalties available were either a term of imprisonment not exceeding three months, or a fine not exceeding $5,000. In R's case, approximately 300 people were involved and, if the multiplier applied to the term of imprisonment, that would mean a potential maximum of 75 years imprisonment could be imposed. Recourse to the totality principle would reduce such sentence, but it was noteworthy that no other offence in New Zealand carried a potential maximum term anywhere near 75 years. As the section stood, it compelled the conclusion that the multiplier applied only to the fine, and not to the term of imprisonment.

R was not an extraditable person in relation to Australia and was therefore not eligible for surrender in relation to the offence for which extradition was sought.

Appeal allowed.

[RESERVED] JUDGMENT OF Wylie J

Introduction
1

This appeal comes before the Court by way of case stated from Judge JC Moses sitting in the District Court at Auckland.

2

The New Zealand Police, pursuant to a request from the Commonwealth Police in Australia, are seeking the surrender of the appellant, Mr Radhi, from New Zealand to Australia under's 45 of the Extradition Act 1999. Following a defended hearing, Judge Moses found as follows 1

  • (a) a warrant for the arrest of Mr Radhi, as required by s 45(2)(a) of the Act, had been produced to the court;

  • (b) Mr Radhi is an extraditable person in relation to the extradition country (Australia); and

  • (c) Mr Radhi is eligible for surrender in relation to the offence for which surrender is sought.

3

Having determined that Mr Radhi was eligible for surrender, Judge Moses issued a warrant for his detention under's 46 of the Act. Mr Radhi then filed a notice of intention to appeal by way of case stated for the opinion of this Court. A case has been stated pursuant to s 68 of the Act. It poses a number of questions for the opinion of this Court. I detail those questions below. First, I set out the factual background in a little more detail.

Factual Background
4

The appellant, Mr Radhi, is charged in Australia.

5

The Federal Police in the Commonwealth of Australia allege that in October 2001, Mr Radhi was involved in an attempt to smuggle approximately 300 people

into Australia using a vessel that Australian authorities codenamed “SIEV X” (Suspected Irregular Entry Vessel — X)
6

On 19 October 2001, the SIEV X sank in rough seas off the coast of Indonesia. The majority of the passengers onboard drowned. It is alleged that most of the passengers were of Middle-Eastern origin, that they were not Australia citizens, and that they did not hold visas authorising them to travel to or enter into Australia. It is alleged that Mr Radhi facilitated the proposed entry into Australia of these persons, by being present during negotiations with passengers regarding fares, controlling the movements and activities of passengers while they were in Indonesia, assisting in the transfer of passengers between places of accommodation, and helping passengers to board the SIEV X.

7

Mr Radhi is now in New Zealand. He was granted refugee status entitling him to enter this country in Indonesia, and he came to New Zealand in 2009.

8

An arrest warrant was issued for Mr Radhi by a Magistrate, Jude Daly, in the Brisbane Magistrates Court on 16 February 2011. The offence detailed in the warrant alleges that between 1 July 2001 and 19 October 2001, at Indonesia, Mr Radhi facilitated the proposed entry into Australia of a group of five or more people, to whom s 42(1) of the Migration Act 1958 (Cth) applied, and did so reckless as to whether the people had a lawful right to come into Australia. If proved, this is an offence pursuant to s 232A of the Migration...

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4 cases
  • Maythem Kamil Radhi v The District Court at Manukau
    • New Zealand
    • Supreme Court
    • 21 December 2017
    ...by the Australian authorities. 2 New Zealand Police v Radhi DC Manukau CRI-2011-92-11423, 19 March 2012; Radhi v New Zealand Police [2013] NZHC 163; New Zealand Police v Radhi [2014] NZCA 327, [2014] NZAR 1019; and Radhi v New Zealand Police [2014] NZSC 3 Police v Radhi [2015] NZDC 7576 (......
  • The New Zealand Police v Radhi (Aka Maytham Kamil Radhi)
    • New Zealand
    • Court of Appeal
    • 17 July 2014
    ...of the District Court's powers under s 47 of the Extradition Act is to be made to the District Court. 1 Radhi v New Zealand Police [2013] NZHC 163 [High Court judgment]. 2 New Zealand Police v Radhi DC Manukau CRI-2011-092-11423, 19 March 2012 [District Court judgment]. 3 Wylie J's leave j......
  • Radhi v District Court at Manukau
    • New Zealand
    • Court of Appeal
    • 3 May 2017
    ...to New Zealand within two years he could apply for a 3 Police v Radhi DC Manukau CRI-2011-092-011423, 19 March 2011; Radhi v Police [2013] NZHC 163; Police v Radhi [2014] NZCA 327; and Radhi v Police [2014] NZSC new visa. The allegations of the Australian Federal Police about his involvemen......
  • Maythem Kamil Radhi v The District Court at Manukau
    • New Zealand
    • Supreme Court
    • 21 December 2017
    ...the country for a period not 2 3 4 5 New Zealand Police v Radhi DC Manukau CRI-2011-92-11423, 19 March 2012; Radhi v New Zealand Police [2013] NZHC 163; New Zealand Police v Radhi [2014] NZCA 327, [2014] NZAR 1019; and Radhi v New Zealand Police [2014] NZSC Police v Radhi [2015] NZDC 7576 (......

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