Radhi v Police Hc Ak

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 11 February 2013
• Neutral Citation: [2013] NZHC 163
• Docket Number: CRI 2012-404-000201
• Court: High Court
• Date: 11 February 2013

Maythem Kamil Radhi(Aka Maytham Kamil Radhi)

and

New Zealand Police

[2013] NZHC 163

CRI 2012-404-000201

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

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.

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

[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 Act 1958 (Cth).

9 On 20 July 2011, the arrest warrant was endorsed by Judge Blackie in the Manukau District Court under's 41 of the Extradition Act 1999, and on 28 July 2011, Mr Radhi was arrested at his home address by the New Zealand Police. The New Zealand Police, pursuant to a request from the Federal Police in Australia, then sought the extradition of Mr Radhi from New Zealand to Australia.

10 As noted, the application was defended and it came before Judge Moses in the District Court on 14 November 2011 and again on 5 December 2011. After considering further written memoranda filed by the parties on 23 January 2012 and 10 February 2012, Judge Moses issued a reserved decision dated 19 March 2012.

He reached the various determinations which I have set out above 2 Further, and as noted in the case stated, he concluded as follows:

• (a) Australia is an extradition country;

• (b) The maximum penalty for the alleged offence under the Migration Act 1958 (Cth) in Australia is 20 years' imprisonment or 2,000penalty units (valued as at the date of judgment at AUD $220,000);

• (c) The alleged offence is punishable under the law of Australia by a maximum penalty of not less than 12 months' imprisonment;

• (d) If the conduct constituting the alleged offence, or equivalent conduct, had occurred within the jurisdiction of New Zealand at the relevant time, it would, if proved, have constituted the offence, under's 142(fa) of the Immigration Act 1987, of wilfully aiding or assisting any other person to arrive in New Zealand in a manner that did not comply with s 126(1), or to arrive in New Zealand without holding a visa, where the person required a visa to travel;

• (e) The wording in s 142(fa) at the relevant time — “whether within New Zealand or otherwise” — indicated that the Immigration Act 1987 did have extraterritorial reach;

• (f) Even if the Immigration Act 1987 in this country did not have extraterritorial effect, and there was a requirement of arrival in New Zealand for there to be a “sufficient nexus of conduct constituting an offence”, then an attempted offence of the nature set out in s 142(fa) of the Immigration Act 1987 would be sufficient for there to be conduct of an alleged extradition offence;

• (g) There is no principle of law which precludes the words contained in s 142(fa) of the Immigration Act 1987 being read broadly to confer extra territorial jurisdiction over an attempted offence;

• (h) At the relevant time, the penalty for a breach of s 142(fa) was set out in s 144(1A) of the Immigration Act 1987, namely “imprisonment for a term not exceeding three months, or to a fine not exceeding $5,000 for each person in respect of whom the offence is committed”;

  • (i) In s 144(1A) of the Immigration Act 1987, the multiplier (the words “for each person in respect of whom the offence is committed”) applied equally to the alternative sentences of a fine and imprisonment for a term;

• (j) If the conduct constituting the alleged offence had occurred in New Zealand at the relevant time, it would, if proved, have constituted an offence punishable under the law of New Zealand for which the maximum penalty is imprisonment for not less than 12 months;

• (k) It is not inconsistent with the New Zealand Bill of Rights Act 1990 to interpret the penalty provision in s 144(1A) in this way;

• (l) The alleged offence is an extradition offence in relation to the extradition country (Australia);

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

• (n) Mr Radhi is eligible for surrender to Australia.

11 The relevance of a number of these findings will become clearer in the analysis below.

The Case Stated

12 The case stated poses the following questions for the opinion of this Court:

• (a) Was Judge Moses wrong to determine that if the conduct constituting the alleged offence in relation to Australia, or equivalent conduct, had occurred within the jurisdiction of New Zealand at the relevant time, it would, if proved, have constituted the offence under's 142(fa) of the Immigration Act 1987?;

• (b) Was Judge Moses wrong to determine that the wording in s 142(fa) of the Immigration Act 1987, namely “whether within New Zealand or otherwise”, indicates that the Immigration Act 1987 has extraterritorial reach?;

• (c) Was Judge Moses wrong to determine that even if the Immigration Act 1987 does not have extraterritorial reach, and there is a requirement of “arrival” in New Zealand for there to be a sufficient nexus of conduct constituting an offence, then an attempted offence of the nature set out in s 142(fa) of the Immigration Act 1987 would be sufficient for there to be conduct of an alleged extradition offence?;

• (d) Was Judge Moses wrong to determine that the wording in s 142(fa) of the Immigration...