ROBIN MULLER V UNITED STATES OF AMERICA CA CA310/07

ROBIN MULLER V UNITED STATES OF AMERICA CA CA310/07 30 August 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA310/07 [2007] NZCA 376BETWEEN ROBIN MULLER Applicant AND UNITED STATES OF AMERICA Respondent Hearing: 20 August 2007 Court: Hammond, Robertson and Ellen France JJ Counsel: A Schaaf for Applicant M F Laracy for Respondent Judgment: 30 August 2007 at 12.30 pmJUDGMENT OF THE COURT The application for leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J) [1] Robin Muller seeks special leave, pursuant to s 144(3) of the Summary Proceedings Act 1957 to appeal a judgment delivered by Venning J on 23 February 2007.[2] The proceedings relate to the extradition of Mr Muller to the United States of America. The question posed for determination in the High Court, and upon which leave was sought, was:Is there a time prescribed in Articles X and XI of the Extradition Treaty in force between New Zealand and the United States of America by which the Court must receive the Minister's notice under s 23(4) of the Extradition Act 1999?[3] The Notice of Application for Special Leave was filed by Mr Muller himself. [4] In this Court we have had the benefit of counsel. Ms Schaaf seeks special leave for a second question, namely:Was the Court correct in holding that the time limit prescribed by Article XI of the Extradition Treaty between New Zealand and the United States of America only relates to the receipt of documents listed in Article X of the Treaty by the Minister and not the Court?[5] There is an issue as to whether, in these circumstances, an additional question can be raised. In part that depends on whether it is a variation of the initial question or introduces some new matter. [6] In the total circumstances of this case, it is not necessary for us to determine the point because of the view we take on the outcome of the argument on time limits.Factual circumstances[7] In 1995 Mr Muller pleaded guilty in a United States District Court to a charge of conspiring to distribute over five kilograms of cocaine. He was granted bail pending sentence and absconded. Warrants for his arrest were issued. [8] A provisional warrant for arrest was issued in New Zealand in May 2006 pursuant to which Mr Muller was detained. There was an application for a determination of his eligibility for surrender under s 24 of the Extradition Act 1999 and a request for surrender.[9] In the course of these proceedings, a question arose as to the time limit between the request for surrender and the arrest. [10] On 7 December 2006 District Court Judge Kiernan sought the opinion of the High Court on the question of law. [11] On 23 February 2007, Venning J held:The short answer to the case stated then must be no, there is no time prescribed in arts X and XI of the Extradition Treaty in force between New Zealand and the United States of America by which the Court must receive the Minister's notice under s 23(4) of the Extradition Act 1999. The question is answered and the appeal dismissed on that basis. The decision of the District Court stands.[12] Mr Muller then sought the issue of a writ of habeas corpus which was dismissed on 9 March 2007. [13] On 8 May 2007 he made an application for leave pursuant to s 144(1) of the Summary Proceedings Act to appeal to this Court. Adopting the reasoning of Baragwanath J in Poon v Police [2000] 2 NZLR 86, Venning J found that there was no merit in the matter being considered further by this Court. He found that the question was not one which, by reason of its general or public importance, should be submitted for further consideration.The applicant's case[14] Ms Schaaf argues that there is a question of general or public importance as to whether the High Court Judges in this case and in Poon were inappropriately influenced in their decision by the decision of the House of Lords in Government of Federal Republic of Germany v Sotiriadis [1975] AC 1 and failed to have regard to the subsequent decision in Belgium v Postlethwaite [1988] 1 AC 924. [15] Ms Laracy argues that no such mistake has occurred and that, although the decision in Sotiriadis was a split decision, their Lordships were not divided on this point and that nothing in the subsequent decision of Postlethwaite alters the relevant reasoning in Sotiriadis.[16] The respondent submits that it is a case of a simple statutory construction of the articles of the Extradition Treaty. There is no time prescribed by which the Court must receive the Minister's notice under s 23(4) of the Extradition Act and therefore the Court must determine a reasonable timeframe. On a plain reading of the statutory provision, there is not a linkage between the 45 day period and the timing of the Minister's notice.Result[17] We agree with Ms Laracy that a further appeal would be pointless in view of the plain meaning of the statutory provision which was clearly and correctly set out by Venning J. [18] Despite the careful presentation of all that could be said on behalf of the applicant, there is nothing which comes anywhere near the threshold for a further appeal to this Court. [19] The application for leave is accordingly dismissed.Solicitors: Otene & Ellis, Auckland, for Applicant Crown Law Office, Wellington