The New Zealand Police v Radhi (Aka Maytham Kamil Radhi)

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWild J
Judgment Date17 July 2014
Neutral Citation[2014] NZCA 327
Docket NumberCA322/2013
Date17 July 2014

[2014] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, Wild and White JJ

CA322/2013

BETWEEN
The New Zealand Police
Appellant
and
Maythem Kamil Radhi (aka Maytham Kamil Radhi)
Respondent
Counsel:

J C Gordon QC and W N Fotherby for Appellant

R P Chambers and S D Withers for Respondent

Appeal against a High Court's interpretation of s142(fa) Immigration Act 1987 (“IA”) (wilfully aids or assists any other person to arrive in NZ) and s144(1A) IA (liable to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $5,000 for each person in respect of whom the offence was committed) — respondent had been charged in Australia with attempting to bring in 300 boat people – Australia sought extradition of respondent — extraditable only if his conduct would have constituted an offence in NZ punishable by not less than 12 months imprisonment — HC determined that conduct would not have constituted an offence punishable under NZ as s142(fa) IA, the words “to arrive” required that there be an arrival or landing – further concluded that there was no offence of “attempting” under s142(f) IA as s72 Crimes Act 1961 (attempts) did not apply — whether there was a requirement of “arrival” in NZ for an offence to be committed under s142(fa) IA — whether it was an offence to attempt to commit the offence set out in s142(fa) IA — whether the multiplier provision in s144(1A) IA (for each person in respect of whom the offence was committed) applied both to the term of imprisonment and the fine.

Held: Textually and in the light of the purpose of s142(fa) IA, “to arrive” meant “so as to arrive” or “in order to arrive”. Dictionary meanings of “arrive” were not the answer here. The critical words were “to arrive” and they were to be construed in the way prescribed by s5(1) Interpretation Act 1999 (ascertaining meaning of legislation).

The fact that the offence could be committed outside NZ was supported by the opening words of s42(fa) IA “whether within New Zealand or otherwise”. Section 142(fa) IA created an offence outside NZ's jurisdiction. Section 142(fa) IA did not require arrival in NZ for the offence to be committed.

Section 72 Crimes Act 1961 (“CA”) (attempts) criminalised attempting to commit an “offence”. Section 2 CA (interpretation) defined offence as “any act or omission for which any one can be punished under this Act or under any other enactment”. Section 142(fa) IA created an offence, it was an offence under “any other enactment” and thus it was an offence to attempt the crime in s142(fa) IA.

The HC had erred in giving any force to the comma in s144(1A) IA — it was best interpreted without the comma.

Secondly, the HC had been erroneously influenced by the fact that applying the multiplier to the imprisonment as well as the fine could result in a very long term. The term that R could have faced would have been 75 years (subject to the totality principle). However an 18 year old convicted in New Zealand of double murder and sentenced to two terms of life imprisonment potentially faced a term longer than 75 years. Further requiring the proceeds of criminal activity to be paid could not be regarded as a penalty but was a recognition that profits from criminality should not be retained ( R v Brough).

The multiplier provision in s144(1A) IA applied both to the fine and to the period of imprisonment.

Pursuant to s73(4)(b) EA (further provisions relating to powers of court on appeal — exercise the powers of a District Court) a warrant was issued pursuant to s46 EA, for R's detention in prison. Pursuant to s72(1)(d) EA (powers of Court of Appeal) the proceeding was remitted the to the District Court so it could consider whether a surrender order should be issued under s47 EA (Court must make surrender order immediately if case not referred to Minister), or whether the case should be referred to the Minister of Justice under s48(4) EA (Referral of case to Minister in certain circumstances).

  • A We answer the three questions on which leave to appeal was granted thus:

    Question One: Was there a requirement of “arrival” in New Zealand for an offence to be committed under s 142(fa) of the Immigration Act 1987?

    Answer: No.

    Question Two: Was it an offence in New Zealand to attempt to commit the offence set out in s 142(fa) of the Immigration Act?

    Answer: Yes.

    Question Three: Did the multiplier provision in s 144(1A) of the Immigration Act “for each person in respect of whom the offence was committed” apply both to the term of imprisonment and the fine set out in that section, or only to the fine?

    Answer: The multiplier provision in s 144(1A) applies both to the fine and to the period of imprisonment.

  • B Pursuant to the powers vested in this Court by s 73(4)(b) of the Extradition Act 1999, we issue a warrant, pursuant to s 46 of that Act, for the respondent's detention.

  • C Pursuant to s 72(1)(d) of the Extradition Act, we remit the proceeding to the District Court so it may consider whether a surrender order should be issued under s 47 of the Extradition Act, or whether the case should be referred to the Minister of Justice under s 48(4).

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Wild J)

Introduction
1

This appeal by the New Zealand Police challenges three aspects of Wylie J's interpretation of two sections in the Immigration Act 1987. 1 Both those sections have long since been amended, indeed the Act has been repealed, so the appeal has relevance only to the respondent. But its importance to him is significant, as will emerge.

2

The two sections in issue are:

142 Offences — Every person commits an offence against this Act who -

  • (fa) Whether in New Zealand or otherwise, wilfully aids or assists any other person–

    • (i) To arrive in New Zealand in a manner that does not comply with section 126(1); or

    • (ii) To arrive in New Zealand without holding a visa, where the person requires a visa to travel to New Zealand; or

    • (iii) To complete an arrival card in a manner that the person aiding or assisting knows to be false or misleading in any particular.

144 General penalty for offences

  • (1A) A person who commits an offence against section 142(fa) is liable to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $5,000 for each person in respect of whom the offence was committed.

3

Wylie J's judgment reversed a decision of Judge Moses in the Manukau District Court 2 on each of the three questions on which Wylie J, pursuant to s 69 of the Extradition Act 1999, granted the Police leave to appeal to this Court. 3 Those three questions are:

  • (a) Was there a requirement of “arrival” in New Zealand for an offence to be committed under s 142(fa) of the Immigration Act 1987?

  • (b) Was it an offence in New Zealand to attempt to commit the offence set out in s 142(fa) of the Immigration Act?

  • (c) Did the multiplier provision in s 144(1A) of the Immigration Act “for each person in respect of whom the offence was committed” apply

    both to the term of imprisonment and the fine set out in that section, or only to the fine?
Background
4

The respondent is charged in Australia. The Australian Federal Police allege he was involved in October 2001 in an attempt to “smuggle” about 300 people into Australia on a boat. Not long after the boat left Indonesia it sank in rough seas and most of the people on board drowned. None of those on board would have been entitled to enter Australia: they were not Australian citizens and did not hold Australian visas.

5

The Australian Police allege the respondent was involved in negotiations with the 300 people over payment for the voyage, in receiving payment, in transporting and accommodating the people while in Indonesia and in helping them aboard the boat. It is not alleged the respondent was the principal offender.

6

The respondent is now in New Zealand. He came here in 2009 as a refugee under the auspices of the United Nations High Commissioner for Refugees.

7

A Magistrate in Brisbane issued a warrant for the respondent's arrest in February 2011. The warrant records that the respondent is charged, between July and October 2001 in Indonesia, with facilitating the proposed entry into Australia of a group of five or more people, reckless as to whether they had a lawful right to come into Australia. This is an offence under s 232A of the Migration Act 1958 (Commonwealth):

232A Organising bringing groups of non-citizens into Australia

A person who:

  • (a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

  • (b) does so reckless as to whether the people had, or have, a lawful right to come to Australia;

is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.

Currently 2,000 penalty units is AUD 340,000.

8

In July 2011 the respondent was arrested by the New Zealand Police, after the Australian arrest warrant was endorsed by a Judge of the District Court under s 41 of the Extradition Act. Following a request from the Australian Federal Police, the New Zealand Police then sought the extradition of the respondent.

9

Following a defended hearing and full submissions Judge Moses granted the extradition request in a decision delivered on 19 March 2012, and issued a warrant for the respondent's detention. 4

10

The respondent appealed successfully to the High Court. In Wylie J's view, had the alleged offending by the respondent occurred within the...

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3 cases
  • Maythem Kamil Radhi v The District Court at Manukau
    • New Zealand
    • Supreme Court
    • 21 December 2017
    ...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 (Judge Moses). 4 Radhi v District Court at Man......
  • Radhi v District Court at Manukau
    • New Zealand
    • Court of Appeal
    • 3 May 2017
    ...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 involvement with the charges and any convi......
  • Maythem Kamil Radhi v The District Court at Manukau
    • New Zealand
    • Supreme Court
    • 21 December 2017
    ...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 (Judge Moses). Radhi v District Court at Manukau [......

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