PLAKAS V POLICE HC AK CIV 2008-404-2412

PLAKAS V POLICE HC AK CIV 2008-404-2412 11 June 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-2412UNDER The Extradition Act 1999 IN THE MATTER OF an appeal against an order determining the Appellant eligible for extradition to Melbourne BETWEEN GEORGE PLAKAS Appellant AND NEW ZEALAND POLICE Respondent Hearing: 13 May 2008 Appearances: G N Bradford for Appellant D G Johnstone for Respondent Judgment: 11 June 2008RESERVED JUDGMENT OF RANDERSON JThis judgment was delivered by me on 11 June 2008 at 4.00 pm, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Solicitors: G N Bradford, PO Box 2274, Shortland Street, Auckland Crown Solicitors, PO Box 2213, AucklandIntroduction[1] Mr Plakas is facing fraud charges in the State of Victoria, Australia. On 4 April 2008, Judge Aitken ruled in the District Court at Auckland that the appellant Mr Plakas was eligible for surrender under s 45 Extradition Act 1999. [2] The charges pending in Victoria relate to six complainants residing in that State who allege that they provided funds totalling approximately $140,000 to Mr Plakas upon his representation that he would invest the funds in New Zealand. It is alleged that Mr Plakas did not invest the funds as promised. Instead, it is said he dissipated the funds on gambling. [3] One of the complainants is a Mr Morgan. In relation to his investment, Mr Plakas has been arrested and charged with fraud in New Zealand. A similar charge is pending in Victoria in respect of Mr Morgan's complaint along with charges relating to other complainants. [4] Mr Plakas submitted unsuccessfully in the District Court that the extradition proceedings should be stayed until after the charge pending against him in New Zealand had been determined. Judge Aitken determined there were no discretionary restrictions under s 8(2) of the Extradition Act which were available to Mr Plakas. [5] Mr Plakas now appeals against Judge Aitken's decision. On 6 May 2008 Venning J directed that the questions of law for this Court to determine on appeal are:• Was the District Court Judge wrong to find that the discretionary restrictions on surrender did not exist because the charge on which the respondent is indicted in New Zealand is aimed at the very same conduct covered by the three criminal charges laid in the Melbourne Magistrate's Court which form the basis for the application for extradition order: s 8(2) of the Act?• In the event the Judge was wrong on that point was the Judge wrong to have declined to exercise her discretion in favour of the appellant bearing in mind hisrights under the New Zealand Bill of Rights Act to a trial in New Zealand, particularly as the New Zealand charge was laid prior to the time that application was made for extradition.The facts in more detail[6] The facts are best set out in a brief chronology: December 2006 Mr Plakas arrives in New Zealand from Australia. 19-22 March 2007 Mr Plakas contacts Mr Morgan from New Zealand and offers him an investment opportunity in New Zealand. At the request of Mr Plakas, Mr Morgan transfers funds to New Zealand with authority for Mr Plakas to access them. 29 May 2007 After a complaint from Mr Morgan, the New Zealand police arrest Mr Plakas at the Auckland International Airport when he was about to fly to Melbourne. August 2007 Victorian Police commence investigations into money transfers to New Zealand allegedly involving Mr Plakas. 5 October 2007 The Deputy Chief Magistrate in Victoria issues a warrant to arrest Mr Plakas in respect of 14 fraud related offences. 15 October 2007 After depositions in the Auckland District Court, Mr Plakas is committed for trial in relation to Mr Morgan's complaint. 29 November 2007 Judge Aitken grants an ex parte application for endorsement of the Victorian arrest warrant pursuant to s 41 Extradition Act. 4 April 2008 Judge Aitken determines under s 45 Extradition Act that Mr Plakas is eligible for surrender in relation to the Victorian charges.The relevant charges[7] The New Zealand indictment charges Mr Plakas that between 19 and 22 March 2007 at Auckland, by deception and without claim of right, he caused loss to Mr Morgan. [8] The New Zealand charges are brought under s 240(1)(d) Crimes Act 1961. Section 240 provides:240 Obtaining by deception or causing loss by deception(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,— (a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or (b) in incurring any debt or liability, obtains credit; or (c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or (d) causes loss to any other person. (2) In this section, deception means— (a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and— (i) knows that it is false in a material particular; or (ii) is reckless as to whether it is false in a material particular; or (b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or (c) a fraudulent device, trick, or stratagem used with intent to deceive any person[9] The Victorian charges (involving complaints by Mr Morgan and five other complainants of similar conduct) are brought under s 81(1) Crimes Act 1958 (Victoria) and allege the offending occurred in Melbourne. That section provides:Obtaining property by deception(1) A person who by any deception dishonesty obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum). (2) For purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it, andobtain includes obtaining for another or enabling another to obtain or to retain. (3) subsections (12) and (13) of section 73 shall apply for purposes of this section, with the necessary adaptation of the reference to appropriating, as it applies for purposes of section 72. (4) For purposes of this sectiondeception(a) means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; and (b) includes an act or thing done or omitted to be done with the intention of causing – (i) a computer system; or (ii) a machine that is designed to operate by means of payment or identification – to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.The Judge's Decision[10] In a thorough and careful decision, Judge Aitken dealt with each step of the extradition proceedings and the matters at issue under s 45 which relevantly provides:45 Determination of eligibility for surrender(1) Subject to section 44(4), if a person is brought before a court under this Part, the court must determine whether the person is eligible for surrender in relation to the offence or offences for which surrender is sought. (2) Subject to subsections (3) and (4), the person is eligible for surrender if—(a) A warrant for the arrest of the person described in section 41(1) and endorsed under that section has been produced to the court; and (b) The court is satisfied that— (i) The person is an extraditable person in relation to the extradition country; and (ii) The offence is an extradition offence in relation to the extradition country. (3) The person is not eligible for surrender if the person satisfies the court— (a) That a mandatory restriction on the surrender of the person applies under section 7; or (b) That the person's surrender would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country. (4) The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8. [11] The Judge was satisfied that: a) A warrant for the arrest of Mr Plakas was produced to the Court and had been endorsed under s 41(1). b) Mr Plakas was an extraditable person in relation to Australia. c) The Victorian offences were extradition offences in relation to Australia. d) There were no mandatory restrictions on surrender under s 7. [12] None of these essential prerequisites for a determination of eligibility for surrender were in issue in the District Court or on appeal. Rather, the focus was on the discretionary restrictions on surrender in s 8(2). No reliance was placed on the discretionary restriction on surrender in s 8(1). However, it is convenient to set out s 8 in full:8 Discretionary restrictions on surrender(1) A discretionary restriction on surrender exists if, because of—(a) The trivial nature of the case; or (b) If the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or (c) The amount of time that has passed since the offence is alleged to have been committed or was committed,— and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person. (2) A discretionary restriction on surrender exists if the person has been accused of an offence within the jurisdiction of New Zealand (other than an offence for which his or her surrender is sought), and the proceedings against the person have not been disposed of.[13] Dealing with the submission made on behalf of Mr Plakas that a discretionary restriction on surrender existed under s 8(2), the Judge considered whether the New Zealand charge in respect of Mr Morgan's complaint was an offence "other than an offence for which his or her surrender is sought". The Judge analysed the essential ingredients of the New Zealand and Victorian charges and concluded:[38] The essence of these two charges is the deception and, in both Australia and New Zealand, that can be done with either deliberate or reckless intent through the use of words or conduct. [39] While in New Zealand the actus reus is to cause a loss and in Australia it is to obtain an advantage, essentially these acts are two sides of the same coin and, at their heart, these charges involve the causing of loss to another by deception. [40] I am in no doubt therefore that the corresponding offence in New Zealand is s 240(1)(d) and that it carries a maximum penalty of more than 12 months.[14] The Judge went on to find that the New Zealand charge was aimed at the "very same conduct" covered by the criminal charges laid in Victoria alleging a loss to Mr Morgan. While she found that the ingredients of the offending may be different, she was not persuaded that this made the offences different to the point where a discretionary restriction on surrender existed. [15] The Judge laid particular emphasis on ss 4 and 5 Extradition Act. Section 4 defines "extradition offence" and relevantly provides:4 Meaning of "extradition offence"(1) In this Act, extradition offence means, subject to an extradition treaty,— (a) In relation to an extradition country, an offence punishable under the law of the extradition country for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty, and which satisfies the condition in subsection (2). (b) In relation to a request by New Zealand, an offence punishable under the law of New Zealand for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty. (2) The condition referred to in subsection (1)(a) is that if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had occurred within the jurisdiction of 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 or any more severe penalty. .[16] Section 5 relates to the way the expression "conduct constituting an offence" (as that expression is used in the Act including its use under section 4(2) in the definition of extradition offence) is to be approached. Section 5 relevantly provides:5 Interpretation provisions relating to offences(1) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed. (2) In making a determination for the purposes of section 4(2), the totality of the acts or omissions alleged to have been committed by the person must be taken into account and it does not matter whether under the law of the extradition country and New Zealand— (a) The acts or omissions are categorised or named differently; or (b) The constituent elements of the offence differ. .[17] The Judge then concluded:[52] s 5 places the focus on the conduct that is the subject of the claimed extradition offence. Thus, in determining whether the same offence in New Zealand would attract the maximum penalty of more than 12 months imprisonment, the decision maker is required to focus on "the totality of theacts or omissions alleged to have been committed". The fact that the elements of the corresponding offences may differ (as here) is deemed to be irrelevant for the purposes of determining whether it is a similar offence within New Zealand. [53] While s 5(2) deals with s 4(2) and the determination of whether we are dealing with an "extradition offence", it is part of the statutory scheme and can, in my view, be taken into account when determining whether s 8(2) is triggered. Further, and relevantly, it would be an absurd outcome to find that there is an equivalent offence in New Zealand which meets the maximum penalty test under s 4, but, because its constituent elements differ in one respect, that same offence must be regarded as a materially different offence for the purposes of s 8(2). [54] For all these reasons, I am satisfied that the offence for which the accused is before the courts in New Zealand is the same offence on which his extradition is sought (as it relates to Mr Morgan). Accordingly, I am satisfied that I have no discretion to restrict the respondent's surrender to Australia to face these offences.[18] The Judge then dealt with a submission that a stay of the extradition proceedings should be granted on the basis that to grant the application before the determination of the New Zealand charge would amount to an abuse of process or would deprive Mr Plakas of his rights to have the New Zealand charge promptly determined. The Judge concluded that there was no abuse of process and that it was not appropriate, even if jurisdiction existed, to stay the extradition process while the New Zealand charge was determined. Matters in New Zealand had proceeded properly and without delay. The Judge noted that there was nothing to suggest that the Victorian charges would not proceed to a final determination in the appropriate forum. [19] As to the argument put on behalf of Mr Plakas that he had a right under the New Zealand Bill of Rights Act 1990 to be tried without undue delay, the Judge considered that it was premature to raise this issue. She noted the Crown's advice that, upon the conclusion of proceedings in Australia the Crown intended to offer no evidence on the New Zealand charge. Should the New Zealand police seek to advance the New Zealand charge after the determination of the Victorian charges, then the issue might properly be raised. [20] The Judge also noted that there might be issues arising as to autrefois convictor autrefois acquit depending on how proceedings advanced in the separatejurisdictions. The extradition proceedings had been promptly pursued; and there was no reason to suppose that the Courts of Victoria would not accord Mr Plakas substantially the same rights in respect of the charges as would attach in New Zealand.The Restricted Discretion Point[21] For Mr Plakas, Mr Bradford advanced essentially the same arguments on appeal as he did in the District Court. Addressing first the issue of whether there was a discretionary restriction on surrender under s 8(2), Mr Bradford submitted that the offences were committed in New Zealand and not in Melbourne. He submitted that Mr Plakas was in New Zealand when he invited the complainants to advance funds to him. The offences were complete and loss was occasioned when the funds were drawn down in New Zealand from the offices of Western Union. Whereas the New Zealand offence pleads a deception without colour of right which caused loss, the Victorian offences plead deception involving dishonesty, and obtaining a financial advantage. It followed that, for the purposes of s 8(2) a discretionary restriction on surrender existed because Mr Plakas was charged with an offence in New Zealand other than the offences or offences for which his surrender was sought. The Judge was wrong, Mr Bradford submitted, to conclude that the offences were effectively the same. [22] I am not persuaded the Judge was wrong to conclude there was no discretionary restriction on surrender available to Mr Plakas under s 8(2). The extradition proceedings were brought under Part 4 of the Extradition Act which applies when Australia or any other designated country seeks extradition of offenders from New Zealand. The procedure is purely statutory since there is no extradition treaty between New Zealand and Australia which has any bearing on the present case (unlike the situation faced by the Court of Appeal in Yuen Kwok-Fung v Hong Kong Special Administrative Region [2001] 3 NZLR 463). [23] In approaching the interpretation of s 8(2), I agree with the Judge that regard may be had to the statutory definition of extradition offence under s 4 and the interpretation of the expression "conduct constituting an offence" under s 5.Sections 4 and 5 make it clear that it is unnecessary for there to be any precise correspondence between the offence alleged in the extradition country and the comparable offence pending in New Zealand. 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. If that conduct constitutes an offence in the extradition country for which the maximum penalty is not less than 12 months imprisonment, then the condition in s 4(2) is satisfied where that conduct (or equivalent conduct) if it occurred within New Zealand would, if proved, have constituted an offence punishable under the law of New Zealand for not less than 12 months. [24] There are, as the Judge noted, some differences in the ingredients of the offence alleged against Mr Plakas under s 240(1)(d) Crimes Act in New Zealand and the offences under s 81(1) of the Victorian Crimes Act. However, the essential elements are deception or dishonesty resulting in a gain to the perpetrator or a loss to the victims. In both cases, deliberate or reckless conduct may be relied upon to constitute the offence. Like the Judge, I am satisfied that the conduct of Mr Plakas which is alleged to constitute an offence in Victoria would, if perpetrated in New Zealand, have constituted an offence here. [25] It is true, as Mr Bradford submitted, that at least part of the offending occurred in New Zealand. But I am not persuaded that the conduct complained of occurred entirely within New Zealand. While Mr Plakas was in New Zealand at all material times and the funds were allegedly received by him in New Zealand, the complainants were, at all material times, in Victoria. They were in Victoria when they received the alleged representations from Mr Plakas and the funds they allegedly sent to New Zealand originated in Australia. [26] It is unnecessary and inappropriate for this Court to determine whether the courts of Victoria have jurisdiction to try Mr Plakas. That may be an issue which is raised at trial in Australia. It is entirely a matter for the courts of that country. However it is relevant to note s 80A Crimes Act Victoria relating to extra-territorial offences. Section 80A provides:80A Extra-territorial offences(1) If - (a) a person does, or omits to do, an act or thing referred to in sections 81-87 (both inclusive) outside, or partly outside, Victoria; and (b) there is a real and substantial link within the meaning of subsection (2) between doing, or omitting to do, the act or thing and Victoria - those sections apply to the act or thing or the omission as if it had been done, or omitted to be done, wholly within Victoria. (2) For the purposes of subsection (1), there is a real and substantial link with Victoria – (a) if a significant part of the conduct relating to, or constituting the doing of the act or thing, or the omission, occurred in Victoria; or (b) where the act or thing was done, or the omission occurred, wholly outside Victoria, if the act or thing was done, or omitted to be done, with the intention that substantial harmful effects arise in Victoria and such effects did arise.[27] In summary, I agree with the Judge that, for the purposes of s 8(2) Extradition Act, the offence alleged against Mr Plakas in New Zealand was not an offence "other than an offence for which his or her surrender is sought". Removing the double negative, the offence alleged in New Zealand was not a different offence from the one for which his surrender to Australia was sought. It follows that there was no discretionary restriction on surrender under s 8(2) as submitted. [28] I am satisfied that s 8(2) is intended to apply where the person whose extradition is sought has been charged with unrelated or materially different offending in New Zealand. In such a case, the Court has a discretion whether to allow extradition to the overseas country. This provision is clearly designed to enable the New Zealand courts to decide whether pending charges here should be disposed of before extradition is considered for the overseas charges.The Bill of Rights point[29] Under this heading, Mr Bradford submitted that Mr Plakas was entitled to have the New Zealand charge dealt with without delay, relying on s 25(b) New Zealand Bill of Rights Act 1990. He submitted that the trial should occupy no more than two or three days and that a prompt trial in New Zealand could be held. While Mr Plakas has been on bail since a time shortly after his arrest, the terms of bail have been strict including a 24 hour curfew for the first seven weeks after his arrest. He has been in custody since the decision of Judge Aitken given on 4 April. [30] Mr Bradford also submitted that for some time Mr Plakas was led to believe that the New Zealand charge would proceed. It was not until 13 December 2007 that the Crown advised that, upon the final resolution of the Victorian proceedings, it intended to offer no evidence in respect of the New Zealand charge. Then, on 4 February 2008, Mr Plakas was advised by the Crown that if the authorities in Victoria did not proceed, then New Zealand might seek to extradite him to New Zealand and proceed against him here. [31] Central to Mr Bradford's submission was that Mr Plakas was entitled to expect that the New Zealand charges would proceed against him promptly. It would amount to a breach of his right to be tried without undue delay if he was forced to wait until some indeterminate future time. The appropriate course, Mr Bradford submitted, was to stay the extradition proceedings until the New Zealand charge had been dealt with. [32] At the hearing of the appeal, I indicated at the outset some sympathy for Mr Bradford's submission. In response, Mr Johnstone advised that the Crown would not oppose a permanent stay being entered in connection with the New Zealand prosecution if the surrender determination made in the District Court were upheld. I am satisfied it would be unjust to Mr Plakas and a breach of his rights under s 25(b) New Zealand Bill of Rights Act to allow his surrender to the Australian authorities but require him to await the outcome of those proceedings before a decision is made about the future of the New Zealand charge.[33] There is evidence that the authorities in Australia and New Zealand have conferred and have concluded the criminal charges against Mr Plakas are best determined in Australia. On the face of things, there is a sound basis for that conclusion in that the complainants reside in Victoria and there is a prospect further charges may be laid in respect of other complainants once investigations are completed. There is no evidence to suggest that the prosecutions in Victoria will not proceed promptly nor can there be any suggestion that Mr Plakas will receive anything other than a fair trial in Victoria. [34] In these circumstances, the proper course is to dismiss the appeal but on condition that, in these unusual circumstances, there will be a permanent stay in respect of the criminal charge brought against Mr Plakas in New Zealand. It was not suggested that this Court lacks jurisdiction to make such an order given the inherent jurisdiction of this Court to prevent an abuse of process in relation to prosecutions in New Zealand. [35] On this basis the appeal is dismissed. ______________________________ A P Randerson, J Chief High Court Judge