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

• Jurisdiction: New Zealand
• Judge: Wild J
• Judgment Date: 17 July 2014
• Neutral Citation: [2014] NZCA 327
• Docket Number: CA322/2013
• Court: Court of Appeal
• Date: 17 July 2014

BETWEEN

The New Zealand Police

Appellant

and

Maythem Kamil Radhi (aka Maytham Kamil Radhi)

Respondent

[2014] NZCA 327

Court:

Ellen France, Wild and White JJ

CA322/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

J C Gordon QC and W N Fotherby for Appellant

R P Chambers and S D Withers for Respondent

• 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 jurisdiction of New Zealand, it would not have constituted an offence punishable under New Zealand law for which the maximum penalty was at least 12 months imprisonment. It followed that the respondent was not extraditable to Australia. Wylie J quashed the warrant for the respondent's detention and discharged him. 5

The Extradition Act

11 Under s 4 of the Extradition Act, the respondent is extraditable only if his conduct, when allegedly committed, constituted an offence in Australia and would, had it occurred within the jurisdiction of New Zealand, have constituted an offence here under s 142(fa), punishable under s 144(1A) by not less than 12 months imprisonment. This gives effect to the principle of double criminality. 6 As explained by Lord Millett in R (Al-Fawwaz) v Governor of Brixton Prison, that principle has the dual aims of precluding extradition if the country requesting extradition could not try the defendant or if its jurisdiction is “exorbitant” – going beyond the jurisdiction the requested country claims for itself. 7

12 Applied here, s 4 aims to ensure the respondent will actually face a trial in Australia if extradited there, and to prevent his extradition for acts that New Zealand does not view as criminal.

13 The respondent accepts his alleged conduct constitutes an offence under Australian law. So the only issue is whether his alleged conduct would have constituted an offence had he been charged under New Zealand law.

14 In inquiring whether the conduct would have constituted an offence within the jurisdiction of New Zealand, s 5 of the Extradition Act requires that it is the totality of the acts alleged which must be taken into account. It does not matter whether they were categorised or named differently or whether the constituent elements of the offence differed. We agree with Randerson J's observation in Plakas v New Zealand Police, that: 8

… The focus is not on the precise terms or ingredients of the offences in the extradition country and in New Zealand. Rather, the statutory focus is on the conduct of the person in question viewed in a broad way …

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?

15 This question arises because Wylie J concluded the conduct attributed to the respondent did not, at the relevant time, constitute an offence in New Zealand under s...