SLAWOMIR RYSZARD BUJAK V THE DISTRICT COURT AT CHRISTCHURCH AND ANOR HC CHCH CIV 2008-409-785

SLAWOMIR RYSZARD BUJAK V THE DISTRICT COURT AT CHRISTCHURCH AND ANOR HC CHCH CIV 2008-409-785 8 October 2008IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2008-409-785UNDER the Judicature Amendment Act 1972 IN THE MATTER OF the Extradition Act 1999 and Proceedings to Extradite Slawomir Ryszard Bujak AND IN THE MATTER OF an application for Judicial Review BETWEEN SLAWOMIR RYSZARD BUJAK Plaintiff AND THE DISTRICT COURT AT CHRISTCHURCH First Defendant AND THE REPUBLIC OF POLAND Second Defendant Hearing: 29 August 2008 Appearances: J Rapley and P Joseph for the Plaintiff First Defendant abides C Lange and D M Jackson for the Second Defendant Judgment: 8 October 2008JUDGMENT OF SIMON FRANCE JThis judgment was delivered by Justice Simon France on 8 October 2008 pursuant to r540(4) of the High Court Rules 1985 .Introduction[1] On 10 April 2008, Judge Erber confirmed an earlier decision that authorised Mr Bujak's extradition to Poland on six fraud charges. On 21 April 2008, Mr Bujak filed judicial review proceedings. The claim alleges:"material errors of law which rendered the decisions invalid in law".[2] The particulars state that in determining the Republic of Poland's documentation to be admissible evidence, two factors were ignored by the Court: a) The documents were not originals or copies thereof; b) The Polish prosecutor had not certified that the evidence was "a true copy thereof" but rather certified they were "reliable and conforming with the original document". [3] The proceedings have a long history, represented by these decisions: a) Judgment of Erber DCJ in two parts – 15 August 2006; that judgment also referring to an earlier ruling by the same Judge on 7 April 2006; b) Judgment of Panckhurst J on case stated appeal, 8 February 2007; c) Judgment of Court of Appeal on appeal from High Court, 6 September 2007; d) Judgment of Erber DCJ, 10 April 2008, dealing with directions given to him under the case stated process by Panckhurst J (in relation to the need to apply hearsay rules to the admitted documents) and by the Court of Appeal (in relation to the need to consider "unreasonable delay" issues within a very narrow compass).[4] Those judgments adequately record the nature of the charges and the full procedural history which I do not repeat. This is an application by way of judicial review of the latest decision of Erber DCJ. It is brought by way of review because the plaintiff believes it has exhausted its appeal rights. I heard no argument on that point so proceed as if judicial review is the only route by which there can be further scrutiny of the issue. [5] The review proceedings relate to the admissibility issues, and do not seek to challenge the decision in relation to unreasonable delay.Issue one – were the documents inadmissible because they are not "copies"?[6] Section 24 of the Extradition Act 1999 provides that a person is eligible for surrender if: a) the supporting documents as described in s18(4) have been produced to the Court; b) any other documents required by the particular extradition treaty are also produced; c) the charged laid is an extradition offence in relation to the extradition country; and d) the evidence produced or given would, according to the law of New Zealand, justify trial if the offence had occurred in New Zealand. [7] Article 13 of the Treaty between New Zealand and the Republic of Poland provides:In the examination which they have to make in accordance with the following stipulations, the authorities of the State applied to shall admit as valid evidence the sworn depositions or the affirmations of witnesses taken in the other State, or copies thereof, and likewise the warrants and sentences issued therein, or copies thereof, and certificates of, or judicial documents stating the fact of a conviction, provided the same are authenticated as follows:-1. A warrant, or copy thereof, must purport to be signed by a Judge, Magistrate, or other officer of the other State, or purport to be certified under the hand of a Judge, Magistrate, or officer of the other State to be a true copy thereof, as the case may require. 2. Depositions or affirmations, or the copies thereof, must purport to be certified under the hand of a Judge, Magistrate, or officer of the other State, to be the original depositions or affirmations, or to be true copies thereof, as the case may require. 3. A certificate of, or judicial document stating the fact of a conviction must purport to be certified by a Judge, Magistrate, or officer of the other State. In every case such warrant, deposition, affirmation, copy, certificate, or judicial document must be authenticated, either by the oath of some witness, or by being sealed with the official seal of the Minister of Justice, or some other Minister of the other State, or by ah other mode of authentication for the time being permitted by the law of the State to which the application for extradition is made.[8] The primary issue concerns the meaning of "or copies thereof" as used in the fifth line and thereafter. It is common ground that originals of documents have not been provided. The Republic says it has provided copies within the meaning of the provision; the plaintiff Mr Bujak says it has not because the only permissible copy is a photocopy of the original. [9] What has been provided appears to be a mixture of photocopy, and transcriptions as in someone having copy typed, or copy hand-written the content of the original. Some may also just be "copies" of documents in the sense of further copies printed by a printer. It is important to observe the sole issue at this point is whether such a document, if otherwise adequately authenticated, is a copy within the meaning of Article 13. [10] It was, I admit, a surprise to me that the plaintiff called in aid on this issue a wealth of human rights authority. The purpose of this material was to emphasise that, in the plaintiff's view, the Extradition Act was a statute about liberty because it limited a person's right to liberty as guaranteed by the Magna Carta and the New Zealand Bill of Rights Act 1990. Because it had this feature, on a judicial review such as the present it was necessary to give the matter "anxious scrutiny" or a "hard look" (the matter to be so regarded being the interpretation of the word "copy").Further, the principle of legality applied so as to mean that copy should be read as meaning only a photocopy. The meaning of the word copy was ambiguous and therefore, in light of these foregoing principles, should be interpreted in a manner favourable to the liberty of the subject. An inquiry as to why interpreting copy as meaning "photocopy" would be liberty advancing was met with the response that it would secure Mr Bujak's liberty. [11] Before commenting on these submissions, I note that the Court of Appeal inUnited States of America v Cullinane [2003] 2 NZLR 1, in the context of considering the correct interpretation of the Treaty there in issue, restated the principle that extradition treaties should receive a liberal interpretation in light of their language, object and intent. The Court noted that its earlier decision of Edwards v United States of America (CA 6/02, 22 August 2002) had ruled Article 3(1) of the Vienna Convention on the Law of Treaties to be applicable. That provision requires Treaties to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty. Finally it is noted that these principles are also reflected in the House of Lords decision in R (Al-Fawwaz) v Brixton Prison Governor [2002] 1 AC 556. [12] Time since the hearing (and I regret it is too long a time) has not changed my view expressed at the hearing that the material relied on by the plaintiff was not legitimately in issue or relevant. I am unsure what it means to say a statute is about liberty, or whether labels ever really advance matters. However, I do not accept the essential classification that the Extradition Act is a statute about liberty. Obviously the Act has implications for a person's liberty because its application to a person means that they can be taken into custody and returned to another country to stand trial. But every statute containing an arrest power likewise has such potential implications. One would not describe the Crimes Act 1961 as a statute about liberty; or perhaps it is, depending on what that term actually means. The Crimes Act is after all essentially about protecting everyone's liberty from those who would unlawfully interfere with it. [13] Nor do I accept that the "hard look" theory of judicial review is intended to apply to the process of interpreting the word "copy" in an extradition treaty. Thehard look theory has little to do with that sort of exercise, and the submission gives insufficient weight to the principles expressed in Cullinane. [14] Finally, concerning the principle of legality, Professor Joseph submitted that it had been developed "as a reactive mechanism to protect against legislative abrogation of human rights". Parliaments can legislate, if they choose, contrary to basic principles of liberty and human rights, but:"the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. (Per Lord Hoffman, in R vSecretary of State for the Home Department; ex p Simms [2002] 2 AC 115 at 131 (HL); the plaintiff's emphasis)."[15] Building on this passage, the word "copy" is submitted by the plaintiff to be ambiguous, and hence the various cited principles are to be applied to produce a liberty-favouring interpretation. In response to an inquiry as to what was the source of the ambiguity, the plaintiff submitted that because copy can have more than one meaning it is by definition ambiguous. [16] I disagree, and observe if that were so most words used in a statute could be labelled ambiguous. Ambiguity comes from the context in which the word is used, that context producing an uncertainty as to which of its possible meanings was intended. No argument was addressed in support of the proposition that the present context made "copies", as used in Article 13, ambiguous. The Extradition Treaty in question was entered into in 1932. The plaintiff says it is no answer to its case to observe that photocopies did not exist at that time, because Treaties are always speaking, and take their meaning and context from the times. That may be so, but it is nevertheless a significant leap to say that the word now means only a technology that did not exist at the time, and arguably is itself becoming supplanted. I am unsure, for example, whether the plaintiff's interpretation would allow for scanned documents, or ".pdf" copies? [17] The plaintiff accepted that a faithful hand-written transcription of a document, word for word, would normally fall within the ordinary meaning of theword "copy". His argument was for a more limited interpretation than the ordinary meaning. [18] The main policy reason I could see that might support such an approach was the greater potential for abuse and mistake in something other than a photocopy. However, I consider there are reasons off-setting such concerns. First, the Act and Treaty establish an authentication process that is designed to give comfort, and has been agreed by the parties to the Treaty as being sufficient to give comfort. Second, it is largely illusory to suggest a photocopy is a better protection against fraud; such an argument assumes that the original is legitimate, and that the photocopy is of the unaltered original. With computer stored documents, and with modern photo shopping capacities, such assumptions are misplaced if there is a fraudulent intent behind the documentation. Further, even the concept of "an original" is reasonably flexible when one has the ability to print out several identical versions. If a letter is printed 20 times and each is signed, presumably there are 20 originals? [19] Another policy concern relied on by the plaintiff was that absent a photocopy, the receiving country does not actually see the signature on the document. It is accepted the authentication process confirms the presence of a signature, but it is submitted that is not the same as seeing it. For myself, given the illegibility of most signatures, I cannot see what advantage there actually is in viewing one. The submission undervalues or ignores the role of the certification process. [20] A further aspect underlying the plaintiff's case was that it was perplexing to the point of suspicion why this method of copying, rather than photocopying, was used by the Republic. I certainly do not endorse the "suspicion" aspect, but agree why it was done as it was is not known. However, in my view a transcribed version of a document is a copy of that document within the meaning of Article 13 of the Treaty, and s18 of the Extradition Act 1999. Further, the documents supplied were copies within those provisions. [21] The plaintiff refers to documents where it is said that it can be seen the translation is an error. In the Polish version, itself transcribed, of one document there are three numbers and in the English version two. Whether that demonstrates amaterial difficulty with a particular document is a matter the deciding Court can address in terms of weight to be given when assessing if there is a prima facie case. The plaintiff's case is that copy can only be a "photocopy" and that is in my view untenable. There is no contextual reason to limit the ordinary meaning of copy, to do so would be contrary to general interpretation principles, and there are other safeguards in the system to address underlying policy concerns. That one method of copying may be better than another is not a reason to misinterpret a word. Finally, the idea of fixing copy with a meaning limiting it to a specific technology seems wholly unworkable.Issue two – hearsay[22] In his original decision Erber DCJ had ruled that the scheme of the Act and Treaty meant that once there was compliance with the procedural aspects of documentation, the documents were receivable and admissible as evidence without further challenge. In particular, it was not open to challenge their contents or aspects of their content as being inadmissible hearsay. Panckhurst J disagreed and directed the Court to redetermine the sufficiency of the charges once any inadmissible hearsay was excluded. Panckhurst J worded it this way: the case is remitted back to the District Court for Judge Erber to determine whether the evidence remained sufficient to render Mr Bujak eligible for surrender after bringing to account the need to decide whether any relevant evidence was hearsay and inadmissible (or not) for that reason.[23] The relevant portions of the subsequent reconsideration by Erber DCJ accurately capture the essence of the plaintiff's case before him and again in this Court, and there is little point in my seeking to word them differently:[33] Mr Rapley has approached the hearsay argument on two bases: a) That the whole of the evidence contained in the case book is itself hearsay and is unreliable and therefore Mr Bujak should be discharged. This submission is made in relation to every charge. b) Looking at the charges charge by charge there are other complaints as to the reliability and/or hearsay nature of the evidence tendered. These are in addition to submission (a) above.So there are two submissions made by Mr Rapley; one of a general nature and the other specific to the charge. [34] Mr Rapley submits: (the number are reference to Mr Rapley's submissions as faxed to the Court)• Poland has not submitted any original documentation at all (14).• There are no photocopies of original documents central to establishing the charges; for example the leasing agreements (pages 189 and 190 of the case) are not original or photocopies of original documents (14).• Poland has re-typed each original document into the Polish language and those "transcripts" have been translated into English (14 and 36).• There is no evidence that the documents relied on in the case book are "exact" copies of the originals (38 and 39).• There are mistakes in the English translation of the Polish transcript and because of this and generally the reliability of the Polish transcription and the translation cannot be assessed (37).• That whoever retyped the transcript in the Polish language may have introduced critical or material alterations which may distort the meaning of the document (37).• The evidence offered in the case book is not the best evidence and is hearsay and inadmissible (15).• The certifications by Prosecutor Orlowska are questioned because she is "an interested party" (41).• It follows from the above that Poland's case falls at the first hurdle of the admissibility and reliability of the evidence contained in the case book. [35] This general submission does not appear to have been made before Panckhurst J or the Court of Appeal so a question arises as to whether it falls within the terms of Panckhurst J's reference. I do not resolve the point since neither party raised it in argument. [39] Mr Rapley says that all of the documentation is hearsay. This criticism really relates to the form and method of presentation of the evidence tendered, not its sufficiency looked at charge by charge (but subject to the excision from consideration of inadmissible hearsay which may be recorded in the deposition). [40] Panckhurst J was, when he referred to hearsay, not contemplating the claim of hearsay represented by Mr Rapley's submission that all the documents were themselves hearsay but was referring to the content of the testimony recorded in the deposition or document. If the situation were as Mr Rapley submits no-one would be eligible for extradition to Poland on authenticated copies of original deposition/documents. And, as I have said above, this submission made to me was never made to Panckhurst J.[41] My conclusion is that this general submission flys [sic] in the face of Article 13 and is rejected. The case book of 500 pages seems to be in its form and presentation to accord with article 13 of the Treaty, being properly authenticated as true copies of original forms of evidence.[24] My response is essentially the same as Judge Erber's. Further, I endorse the Judge's concern as to whether this argument was actually available. It appears to stretch the terms of Panckhurst J's reference back to the Court under the case stated procedure. I also note that at the original hearing before Judge Erber it was noted:No objection is taken by Mr Bujak either in terms of s24(2)(a) or in terms of the treaty documentary requirements to which effect must be given asserting that the necessary document is not present or that the authentication of the document is not as required.[25] The appeal by way of case stated is by way of question of law only. It is difficult to see how that appeal power has somehow enabled new counsel to take points not taken originally. The reference back by Panckhurst J was specifically in relation to the hearsay content of documents. Finally I also note it is not an error pleaded in the statement of claim which is limited to the issue of copies, and to queries about the authentication process. Whilst generally adverse to considering matters not properly in issue, I am conscious that the resolution of the Republic's application has taken four years already and do not wish to risk further delay. For that reason only, I will consider this aspect. [26] Concerning the documentation, the general bundle begins with a Certificate of Authentication issued by the Chargé d'Affaires at the Embassy of the Republic of Poland in New Zealand. The documents are listed and the Chargé d'Affaires concludes by certifying they are submitted in satisfaction of the Treaty requirements and are certified to by a true and correct copy of the Polish originals. [27] The first group of documentation is a copy of the documents in Polish. The next series is a set of the same documents, but translated into English with certification by the appropriate Polish translator. The translator states that he is a sworn translator of the English language for the District Court of the City of Warsaw, and that he certifies:the documents attached hereto, constitute a true and complete translation of the 79 pages of original Polish documents.[28] The first substantive document is a description of the 8 charges, giving considerably more detail than would be contained in, for example, an information. It is signed by the relevant Public Prosecutor. There is then the Provisional Warrant issued by a Judge. It too records the charges in detail. [29] Each charge has a collection of documents separated by a cardboard insert. The order of documentation is foreign to our system in that the sworn evidence comes last. The testimony of these witnesses provides very detailed identifying particulars of each witness. The witnesses on charge 1, for example, worked for the leasing company which is alleged to have been the victim of the plaintiff's fraud. The first witness gives a narrative history of the company's dealings with Mr Bujak. A second witness details the documentation, and a third witness describes the subsequent events and the company's losses. Within each bundle for each charge, in addition to the witness statements, there are some but not necessarily all of the documents referred to in the witness statements. The witness statements do not contain specific cross-references to the documents, but matching is possible from the content. [30] By contrast, under New Zealand procedure, in a contested preliminary hearing or trial, a prosecutor would have the witness identify the document and produce it. Likewise, written deposition briefs in New Zealand are usually drafted in a manner that reflects anticipation of that process occurring at trial, and which themselves produce documents necessary for committal. [31] Mr Rapley first notes that all of the witness statements are retyped copies or transcripts. He then notes that in New Zealand the witness's evidence, to be admissible, must be recorded in writing, and each page must be signed by the witness to record it is accurate. Here not only has that not happened, but the actual witness statements are not signed. (The transcription says the original is signed but, as discussed, the signature is not itself replicated.) Further the exhibits (copies of documents) are not annexed to the witness statements or cross-referenced by the statements.[32] Relying on Mewes v Attorney-General [1979] 1 NZLR 648 it is said that the documents are therefore inadmissible. The deficits mean none of the evidence is admissible, and therefore the evidence is insufficient to support Mr Bujak's committal. Specific examples of what is submitted to be an incorrect translation are given. [33] In reply Mr Lange first disputes the justicability of these issues on review given the history of the proceedings, the concessions at the first hearing, and the limited nature of the reference back on the case stated procedure. He then refers to settled interpretation principles identified earlier. [34] Mr Lange's summary of the documentation presented is accurate, and merits recitation:(a) There are three volumes of documents, bound and wax-sealed by the Polish Charge D'Affaires, Wellington (pp1, 117 and 499 casebook); (b) At the front of each volume is a certificate of authentication dated 19th March 2004 which lists the documents annexed and is signed by the Charge D'Affaires and sealed with the official seal of the Republic in Wellington (eg pp 3-4 casebook); (c) There is a further certificate of authentication also dated 19 th March 2004 signed by the Charge D'Affaires, which certifies that "in satsifaction of the Treaty , and pursuant to that Treaty the enclosed set of documents are true and a correct copy (sic) of the original Polish documents." (eg p5 casebook); (d) The second part of each volume contains the English translation. Each translation commences and/or concludes with certification from a sworn translator, signed and sealed with the translator's official stamp. For example (p 2 casebook):"I, the undersigned dr (sic) Marek Kaminski, sworn translator of the English language for the District Court of the City of Warsaw, hereby certify that the documents attached hereto, constitute a true and complete translation of the 79 pages of original Polish documents. .. Warsaw, 2002-06-14"(e) The translation includes a document's description, which describes or lists the documents translated, the author of the documents and their dates (pp 6 to 17 casebook); (f) The documents are bundled on a charge by charge basis preceded by an administrative bundle (correspondent between New Zealand and the Republic, Court documents, Warrant of Arrest, Certification and so on);(g) Every page of the translation is sealed with the translator's stamp and initialled by the translator; (h) Where the document is a copy it is certified as "reliable and conforming with the original document" (eg p 25 casebook); (i) Where a stamp or seal is used the stamp is described in words, and the inscription translated (eg p 25 casebook); (j) A number of documents are certified by the prosecutor. Included in volume I is a document entitled "attachment 6" (p 47 casebook), which is the certification of the Chief Prosecutor that:"all the copies of the documents related to the investigation being conducted by the (relevant) District Prosecutor's Office have been reliably drawn up. Only prosecutor Renata Orlowska as the person conducting the preliminary proceedings is entitled in compliance with the applicable law of the Republic of Poland can certify the copies to be true to the original documents".[35] The essence of Mr Bujak's case on this point must be that the requirement in s24(2)(d) of the Extradition Act that:the evidence produced or given at the hearing would according to the law of New Zealand, but subject to this Act – in the case of an extradition offence justify the person's trial if the conduct constituting the offence had occurred within New Zealand means the documentation must conform with the Summary Proceedings Act 1957. [36] In my view that is untenable. The Act sets out the documentary requirements to support an application. For example, s18(4)(c) requires a written deposition setting out a description of the offence, the penalty and the conduct relied upon. There is no reason to require that, or other witness briefs, to also meet the form requirements of the New Zealand criminal procedure legislation. If the documentation conforms with the Act and Treaty it is valid and admissible for the purposes of establishing justification to send the suspect to trial. Mr Lange relied on the text Stanbrook, Extradition Law and Practice (Oxford Press) as authority for the proposition. I do not have immediate access to it, but consider the proposition sufficiently self-evident to not delay matters further by awaiting access.[37] I do not consider Mewes to stand for any different proposition. There the Court's concern seemed primarily with the hearsay content within documents. If it goes wider than that I respectfully disagree. The present witness statements begin with an acknowledgement of the obligation to tell the truth, and set out the provisions of the Polish Code of Penal Procedure under which they are taken. The person taking the statement confirms his authority to do so, and the steps taken to confirm the identity of the witness. The deposition is signed by the authorised person who takes it, and by the witness. The whole deposition is then certified by the appropriate official, namely the Polish District Prosecutor. This process establishes it accords with the requirements of the Polish criminal procedure, and in reality substantively reflects that which occurs in New Zealand. It would undermine the entire procedure if the form of the document had to instead replicate the Summary Proceedings Act 1957.Issue three – appropriate authentication[38] This issue was effectively part of the preceding submission as to non-admissibility of all the documentation. The primary complaint is that rather than certifying the documents to be a true copy, the prosecutor used the terminology:I certify that this copy, consisting of x pages, is reliable and conforming with the original document.[39] The exact wording of Article 13 of the Treaty is:certified under the hand of a Judge, Magistrate or officer of the other State to be a true copy thereof.[40] In my view the method used by the prosecutor is sufficient to come within Article 13. The intent is plainly the same, and one must be cogniscent of the context, involving as it does different countries with different languages. It is not a question of putting irregularities to one side, but of assessing the documentation in a balanced and critical manner, but bearing in mind general treaty interpretation principles. If that is done, I see no merit in the complaint. Whilst obviously "true copy" would remove debate, in many ways there is quite a degree of assurance in the terminologyactually used by the prosecutor who confirms the document conforms with the original and is reliable. [41] I finally conclude this aspect of the review by observing that I do not consider it was open to the plaintiff to have taken this objection before the District Court Judge. It undermines the legislative process of a limited case stated appeal on a question of law if one can raise new challenges on any reference back. At the original hearing Mr Bujak, through counsel, specifically accepted that the documents were properly authenticated. The effect of allowing new counsel to raise fresh challenges is to delay a final decision and is contrary to the scheme.Miscellaneous issue[42] The plaintiff in his submissions contested particular documents or particular aspects of some documents. I remain uncertain as to the context in which that was done – i.e. whether the challenges are just illustrative of the difficulties inherent in the type of copies submitted by the Republic, or whether they are said to represent stand alone challenges to the Judge's decision on some of the charges. I note that Panckhurst J experienced similar uncertainties about some of the submissions (from a different counsel) following his hearing. [43] If the challenges are illustrative of the policy concerns supporting the plaintiff's argument about the meaning of "copy", then I have addressed them to the extent required. If they are charge specific challenges, my short response is that the District Court in its initial decision had reached decisions on each charge. Both sides appealed by case stated, as provided for in the Act. The High Court confirmed the decisions in Mr Bujak's favour. It also required the Court to reassess hearsay issues on the charges that had been upheld by the District Court, and to then determine if any reduction in available evidence led the Court to a different decision on the specific charge. No specific challenge is made in these review proceedings to a specific hearsay decision. Accordingly the issue of the correctness of the decision on each charge is not properly raised on the review. Nor would it be a function of this Court, on judicial review, to act as if there were a general appeal from the District Court's decision when the statute clearly intends a limited appeal right.Conclusion[44] The application for review is dismissed. [45] The parties may file memoranda on costs if agreement cannot be reached. "Simon France J"Solicitors: J Rapley, Barrister, PO Box 13-868, Christchurch, email: james.rapley@bridgesidechambers.co.nz C Lange, Raymond Donnelly & Co, PO Box 533, Christchurch, email: cjl@raydon.co.nz