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Bujak v Republic of Poland [2007] NZCA 392; [2008] 2 NZLR 604 (6 September 2007)

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA287/07 [2007] NZCA 392

BETWEEN SLAWOMIR RYSZARD BUJAK Appellant

AND THE REPUBLIC OF POLAND Respondent

Hearing: 9 August 2007

Court: William Young P, O’Regan and Robertson JJ Counsel: G M Illingworth QC for Appellant

C J Lange for Respondent

Judgment: 6 September 2007 at 2 pm

_{JUDGMENT OF THE COURT}

A We answer the questions on which leave to appeal was granted as follows:

(i) Is undue delay amounting to abuse of process made a justiciable issue in an extradition context by virtue of s 22 of the Extradition Act 1999 and the decision of the Court in Police v D [1993] 2

NZLR 526? Answer: Yes

(ii) If so, were the circumstances said to constitute undue delay in this case capable of founding an abuse of process in terms of the test

_{framed in Police v D?}

SLAWOMIR RYSZARD BUJAK V THE REPUBLIC OF POLAND CA CA287/07 6 September 2007

Answer: It is not possible to rule out that possibility on the evidence before the Court.

B We therefore allow the appeal in part and remit the matter to the District Court for consideration of the appellant’s abuse of process argument.

REASONS OF THE COURT

(Given by O’Regan J)

Extradition to Poland

[1] The Republic of Poland seeks the extradition of Mr Bujak so that he can be tried on a number of fraud-related charges arising in the context of the failure of a transport business which he operated in Poland. The offences are alleged to have occurred in 1988 – 1989. Mr Bujak left Poland in 1999 and has not returned. He has resided in New Zealand since 1999 and has been granted permanent residence. Poland began moves to have Mr Bujak extradited at the end of 2000, but its formal request for his extradition was not made until March 2004.

[2] Mr Bujak was brought before the District Court under s 24 of the Extradition Act 1999 to determine his eligibility for surrender to Poland. Under s 22 of the Extradition Act, such proceedings must be conducted in the same manner as if they were the preliminary hearing of an information for an indictable offence committed in New Zealand.

[3] Mr Bujak argues that there has been delay of such gravity in the process to extradite him that the Court should rule Mr Bujak ineligible for surrender to Poland or should stay the s 24 proceedings.

Issues

[4] The essential issue for this Court is whether a District Court conducting a s 24 hearing has jurisdiction to stay the proceeding in the event that it concludes the proceeding is an abuse of process. Put another way, is delay a justiciable issue in s 24 proceedings, in the context of a request for extradition to Poland? If the answer to that questions is “yes”, a subsidiary question arises as to whether the matter should be remitted to the District Court for consideration of Mr Bujak’s allegation that the delays in this case are of such gravity as to amount to an abuse of process.

Is delay a justiciable issue?

[5] This requires us to evaluate the relevant provisions of the Extradition Act against the background of the Treaty applying to the extradition of alleged offenders to Poland from New Zealand (the Poland/NZ Treaty). We will do this by reference to the history of the present case and the events leading up to the appeal to this Court.

The history of the proceedings

[6] Prior to the District Court hearing to determine his eligibility for extradition, Mr Bujak sought an order compelling various government agencies to disclose documentation relevant to Poland’s extradition request and the extradition proceedings against him. The purpose of this disclosure was said to be to assist Mr Bujak in the pursuit of his claim that he should not be extradited because of undue delays in the extradition process.

[7] Judge Erber ruled that Mr Bujak could not argue that delay and its consequences vitiated the extradition proceedings or the power of the court to find

him eligible for surrender. As the only purpose of the disclosure order was to ascertain facts relating to delay, the application for the disclosure order was declined: Republic of Poland v Bujak DC CHCH CRI-2005-009-1703 7 April 2006. Subsequently, Judge Erber ruled that Mr Bujak was eligible for surrender to Poland in relation to six of the eight charges he faced, and not eligible in relation to the other two: DC CHCH CRI-2005-009-1703 15 August 2006. Both Mr Bujak and Poland appealed by way of case stated against aspects of Judge Erber’s decisions.

[8] The appeal was heard by Panckhurst J. He found that Judge Erber was right to decline to make the disclosure order, though for slightly different reasons: Bujak v Republic of Poland HC CHCH CRI 2005-009-1703 8 February 2007. In particular, he found that a District Court Judge conducting a hearing for the purpose of determining eligibility for surrender had jurisdiction to stay the proceeding if the procedure was so flawed as to amount to an abuse of process. However, he determined that the delay alleged to have occurred in the present case did not amount to an abuse of process for which a stay was available.

[9] Mr Bujak sought leave to appeal to this Court under s 144 of the Summary Proceedings Act 1957 (which applies to extradition cases by virtue of s 69 of the Extradition Act). Panckhurst J declined leave on some questions but granted leave on the following two questions:

(i) Is undue delay amounting to abuse of process made a justiciable issue in an extradition context by virtue of s 22 of the Extradition Act 1999 and the decision of the Court in Police v D [1993] 2 NZLR 526?

(ii) If so, were the circumstances said to constitute undue delay in this case capable of founding an abuse of process in terms of the test framed in Police v D?

Mr Bujak’s case

[10] Mr Bujak’s argument, that the District Court should decline to order his surrender because of delay, was based on s 8(1) of the Extradition Act. He wished to

argue that, having regard to all the circumstances of the case (and in particular the delay in pursuing extradition), it would be unjust or oppressive to surrender him. Both the District Court and the High Court ruled out that possibility because s 8 does not apply in the present case. However, counsel for Mr Bujak, Mr Illingworth QC, contends that there remains a discretion on the part of the District Court to decline to order surrender on the basis that the delays that have been occasioned in the pursuit of Mr Bujak’s extradition are of such significance that they amount to an abuse of process and the District Court’s inherent power to prevent an abuse of its own processes applies in the context of extradition proceedings.

[11] This appeal focuses on the latter submission, but in order to provide a context for it, we need to consider the argument based on s 8. This involves the consideration of the relevant provisions of the Extradition Act and the relevant provisions of the Poland/NZ Treaty.

Treaty provisions

[12] The Poland/NZ Treaty was initially entered into by the United Kingdom and Poland in 1932 and its provisions were extended to New Zealand by virtue of the Poland (Extradition: Commonwealth of Australia and New Zealand) Order in Council 1934. That order is preserved under s 104 of the Extradition Act.

[13] Article 4 of the Poland/NZ Treaty provides:

Each party reserves the right to refuse or grant the surrender of its own subjects or citizens to the other party.

[14] Article 6 provides:

Extradition shall not be granted if the accused has by lapse of time, in accordance with the laws of that part of the territories of the High Contracting Parties in which he is found, acquired exemption from prosecution or punishment with respect to the crime or offence for which his surrender is claimed.

Extradition Act provisions

[15] The Extradition Act sets out mandatory and discretionary restrictions on surrender. The discretionary restrictions are contained in s 8, which relevantly provides:

8 Discretionary restrictions on surrender

(1) A discretionary restriction on surrender exists if, because of—

...

(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.

[16] Section 11 gives instruction on the interpretation of extradition treaties and the extent to which they abrogate provisions of the Act. Section 11(1) requires the provisions of the Extradition Act to be construed to give effect to the relevant extradition treaty. As this Court noted in Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] NZCA 174; [2001] 3 NZLR 463 at [16], a court which is required to apply the Extradition Act must undertake a “reconstruction of the Act, to the extent it is inconsistent with the treaty, to make it consistent”.

[17] However, s 11(1) is qualified by s 11(2) which says that extradition treaties cannot be construed to override certain provisions, including:

(a) Section 7, which contains the mandatory restrictions on surrender;

(b) Section 24(2)(d), which provides that a person is eligible for surrender in relation to an extradition offence if the court is satisfied that the evidence produced or given at the hearing would justify a trial had the conduct occurred within New Zealand, or would prove that a person alleged to have been convicted of an extradition offence was so convicted;

(c) Sections 30(2)(b) and (3)(a), which provide that the Minister of Justice must not surrender a person if there is a danger that the person will be subjected to torture or capital punishment in the extradition country;

(d) Section 45(5), which provides that no evidence shall be adduced to contradict an allegation that a person has engaged in conduct in respect of which extradition is sought, and that nothing requires positive evidence of such conduct to be adduced.

[18] Section 11(3) says that s 11 is subject to s 105. Section 105 is a savings provision in respect of treaties that were governed by the Extradition Act 1965. Its effect in the present case is that the discretionary restrictions in s 8 do not apply in relation to Poland to the extent that they are inconsistent with any provision in the Poland/NZ Treaty.

The s 8 arguments

[19] In the High Court, Mr Illingworth argued that the discretionary restrictions in s 8 were not inconsistent with the Poland/NZ Treaty. He contended that art 6 of the Treaty (quoted at [14] above), construed consistently with s 25(b) of the New Zealand Bill of Rights Act 1990, dealt not only with a situation where a statutory limitation period has expired, but also with cases of undue delay in the pursuit of extradition proceedings. Thus, he argued, art 6 could be construed as empowering New Zealand to refuse to extradite Mr Bujak because of the delay in this case. On that basis, he submitted that s 8 of the Act was consistent with the Treaty, and did not need to be read down.

[20] Panckhurst J rejected this argument. He found that art 6 deals only with the situation where a statutory limitation period had expired, ie where the person in respect of whom extradition was sought was exempt from prosecution or punishment in relation to the relevant offences. In the absence of any other provision dealing with delay, Panckhurst J found that s 8(1) was inconsistent with the Poland/NZ

Treaty, and that the discretionary restrictions in s 8 therefore did not apply in relation to the extradition request from Poland.

[21] The second argument made in the High Court was based on art 4 of the Treaty, which empowers each party to refuse to surrender its own subjects or citizens to the other party. Mr Illingworth argued that Mr Bujak had acquired the status of “subject” in New Zealand because he had the status of a permanent resident. Panckhurst J accepted that Mr Bujak was a “subject” for the purposes of art 4, but found that the discretion to refuse surrender was one to be exercised by the Minister, not the District Court judge conducting the hearing under s 24. Thus, art 4 did not provide a basis for arguing that s 8 was consistent with the Poland/NZ Treaty.

[22] Having rejected both arguments, Panckhurst J concluded that the discretionary restrictions in s 8 did not apply in the present case.

[23] Mr Bujak sought leave to appeal in respect of Panckhurst J’s conclusions on the application of s 8 in the present case, but Panckhurst J declined leave. Thus, that issue is not before us, and Mr Illingworth did not seek special leave to appeal on that point.

The s 22 argument

[24] As noted earlier, s 22 requires the District Court to conduct proceedings under s 24 in the same manner as if they were the preliminary hearing of an information for an indictable offence committed in New Zealand.

[25] In the High Court, it was argued that undue delay/abuse of process were justiciable issues because the District Court had the same powers as it would have in the conduct of a preliminary hearing, and this included the power to stay proceedings to prevent an abuse of process. Panckhurst J accepted that proposition, rejecting the conclusion of Judge Erber to the effect that unreasonable delay/abuse of process is an issue for determination by a trial court, not by a court conducting a preliminary hearing.

[26] Panckhurst J applied the decision of this Court in Police v D, in particular the following comments at 530 of the judgment delivered on behalf of the Court by Gault J:

Where however it appears that although the informant has sufficient evidence to warrant committal the procedure is so flawed that it would be an abuse of process to conduct even a preliminary hearing we consider that there would be necessarily implicit in the jurisdiction the power to stay. An obvious example would be where the defendant already has been convicted and punished for the offence charged. In such exceptional cases it would be appropriate not to embark upon or continue a preliminary hearing. To do so would be an abuse of the committal process. We distinguish between the committal process and the trial process because we consider that issues of abuse of process of the trial Court should be matters for that Court or perhaps for the supervisory jurisdiction of the High Court.

We see no reason to treat cases of delay in bringing or prosecuting criminal charges in any special category. There will, of course, be cases in which because of lapse of time the sufficiency of the evidence to justify committal will be affected as with unreliable recollections of witnesses but they do not necessarily give rise to questions of abuse of process.

[27] Panckhurst J commented at [44]:

It is only where it would be an affront to embark upon that function [to decide whether the informant’s evidence is sufficient to justify committal], for example because the defendant has already been tried and punished on the same charge, that an abuse of process may arise. Hence, ...abuse is available only in exceptional cases. It is a jurisdiction tested by, or founded on, necessity. If the abuse alleged necessarily goes to the very function of a committal court it must be confronted. In the circumstance it is justiciable. But if not, the issue of abuse is properly left for consideration at the trial stage.

[28] Having decided that abuse of process was justiciable, Panckhurst J then considered the facts of the case and commented that the argument based on delay in the present case “does not impress me as an exceptional delay argument which had to be confronted at the surrender hearing”. He thus concluded that undue delay amounting to abuse of process was not justiciable in the context of the present case, given the nature of Mr Bujak’s delay complaints.

[29] On behalf of Poland, Mr Lange argued that Panckhurst J was wrong to conclude that abuse of process was justiciable in the circumstances of the present case. He said that the District Court’s inherent power to event abuses of its own process was limited by statutory provisions. In the present case, the Extradition Act

itself dealt with delay in s 8(1)(c), and that was the proper foundation for a delay argument in extradition cases. As the Poland/NZ Treaty overrode s 8 in this case, it must also be taken to have overridden the inherent power based on abuse of process, where that abuse is said to be occasioned by undue delay.

[30] We do not consider that argument is sustainable. We accept that, if s 8 were not excluded by the terms of the Poland/NZ Treaty, any argument based on delay would be better directed to the court’s statutory power under s 8(1)(c), than its inherent power. It is clear that the s 8(1)(c) power is more explicit and broader in its terms than the inherent power of a District Court in a committal hearing.

[31] But where the power under s 8(1)(c) is excluded, there is no reason to read down the inherent powers of the District Court. The power under s 8(1)(c) is a power to refuse to surrender someone who is otherwise eligible for extradition because of undue delay. That is quite different from the power under s 22, which is a power on the part of the District Court to prevent an abuse of its own processes by refusing to conduct a hearing to determine whether a person is eligible for surrender. The legislature has specifically provided that the s 24 hearing will be conducted on the same basis as a committal hearing, and that necessarily imports the same inherent powers on the part of the District Court. The terms of a treaty cannot be sensibly interpreted as requiring a New Zealand court undertaking a statutory function to do so even where that process would amount to an abuse of the New Zealand court’s process.

[32] Our conclusion is supported by s 11(2)(d) of the Extradition Act which provides that no treaty may be construed to override any provision conferring a particular function or power on the Minister or a court. Section 22 is such a provision, and therefore cannot be overridden. Mr Lange disputed this. He said s 11(2)(d) is subject to s 105 (as s 11(3) provides), the effect of which is to render s 8 inapplicable in the present case. We do not accept that this has any significance in the context of s 22, for the reasons explained in [30] above. He also argued that the qualifying words in s 22 (“except as expressly provided in this Act”) meant s 22 was also subject to s 105. That may be so but, again, it has no significance in the present case because s 105 renders s 8 inapplicable, but does not limit s 22.

[33] We conclude that a District Court exercising jurisdiction under s 22 has the same power to avoid an abuse of its process as it has when conducting a committal hearing. This Court’s decision in Police v D applies. We therefore uphold this aspect of the decision of Panckhurst J and answer the first question for which leave to appeal was given (see [9](i) above) in the affirmative.

Should the case be remitted to the District Court? (1)

[34] As noted earlier, Panckhurst J concluded that Mr Bujak’s complaints of delay did not come within the “exceptional” category that would justify a court exercising jurisdiction under s 22 to find that there was an abuse of its processes.

[35] Mr Illingworth said that the case stated before the High Court did not raise the issue of whether an abuse of process argument was available in the factual circumstances of the case. He noted that the abuse of process argument was never put to the District Court because Judge Erber ruled it was not justiciable. That ruling was made in the context of an application for a disclosure order. That meant that no evidence was given in the District Court about delay, and there was therefore no evidential foundation for Panckhurst J’s conclusion.

[36] Mr Lange pointed out that Judge Erber had recorded in his decision of

7 April 2006 the nature of the delay arguments Mr Bujak wanted to make. These were that the delays would prejudice his defence at trial and that the delays made his surrender unjust and oppressive. The latter clearly relies on s 8, which is inapplicable in the present case. Only the former therefore remains relevant. Mr Lange said that Panckhurst J’s comments as to whether the factual circumstances of this case amounted to an abuse of process were obiter, but he said the Judge had the power to decide not to remit the matter to the District Court under s 112 of the Summary Proceedings Act and was entitled not to do so given the (obiter) view he had formed on the futility of doing so.

[37] We approach this aspect of the case in two parts. First, we consider the scope of the abuse of process jurisdiction of the District Court in a s 22 hearing. Having

done that, we consider whether there is any live issue for determination in the

District Court.

[38] Mr Lange argued that the scope of any abuse of process jurisdiction was very limited. He pointed to the limited function of a District Court in the context of a s 24 hearing, namely to decide eligibility for surrender. The court must, in terms of s 24(2)(d), satisfy itself that the evidence against the person for whom extradition is sought would justify the person’s trial if the conduct constituting the offence had happened in New Zealand. He said this mirrored the terms of arts 12 and 13 of the Poland/NZ Treaty. The parallels with the jurisdiction of a District Court in a committal hearing (under ss 167 and 168 of the Summary Proceedings Act) are obvious.

[39] Mr Lange said this Court had made it clear in Police v D that it would only be in exceptional cases that a court conducting committal proceedings would be entitled to stay the committal proceedings to avoid an abuse of process. In particular the court emphasised that questions of delay affecting the fairness of an accused person’s trial were for the trial court, not the court conducting a committal hearing.

[40] Mr Lange said that the same applied by analogy in the present case. In this case, the trial court would be a court in Poland. Any issues of delay which Mr Bujak wished to raise should be left to that court to determine. He said this also accorded with ordinary principles of international comity, as noted in the judgment of the Supreme Court of Canada in Argentina v Mellino [1987] 1 SCR 536 at [32].

[41] In those circumstances, Mr Lange argued that it was clear that the delay arguments which Mr Bujak wished to make in this case were either ruled out by the fact that s 8 is overridden by the Poland/NZ Treaty or were outside the scope of the Police v D jurisdiction because they were matters for the trial court in Poland.

[42] Mr Illingworth argued that the role of a District Court under s 24 is much wider than that contended for by Mr Lange. He said that the court not only had to determine whether there was sufficient evidence to justify surrender (in terms of arts 12 and 13) but also to consider whether it was appropriate that New Zealand

surrender a “subject” in terms of art 4 (quoted at [13] above). He said that Mr Bujak was a “subject” because he had attained the status of permanent resident in New Zealand.

[43] Panckhurst J had accepted that Mr Bujak was a “subject” for this purpose, when analysing the potential applicability of s 8, but had ruled that the power to decline to surrender a subject under art 4 was a power to be exercised by the Minister of Justice, rather than the District Court. Mr Illingworth’s submission therefore effectively called into question an aspect of Panckhurst J’s analysis of s 8, which is not strictly before us. However, Mr Illingworth’s argument that Mr Bujak is a “subject” is an important aspect of his argument that there is a broad jurisdiction for the District Court to deal with matters of delay, and we therefore need to deal with it. For that reason we asked counsel to file submissions on the issue, and we now turn to our evaluation of them.

Is Mr Bujak a “subject” in terms of art 4?

The historical and legislative background

[44] As noted earlier the Poland/NZ Treaty was originally the Poland/United Kingdom Treaty. It is clear that “subjects” was, with respect to the original parties to the Treaty, a reference to United Kingdom nationals, just as “citizens” was a reference to Polish nationals. At the time, there was a clear distinction between those who had acquired British nationality, and those who had not. This is demonstrated by R v Manning (1849) 1 Den CC 467 at 478; 169 ER 330 at 334, where Wilde CJ said:

A British subject might be subject to certain disqualifications, but the Court know of no instance in which the character of an alien and a British subject are united.

[45] An alien in Great Britain could achieve naturalization by petitioning the Crown, through the Home Office, for letters of denization. As Sir William Blackstone said in his Commentaries on the Laws of England (15ed 1809, Book 1) at

374:

A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state, between an alien and natural-born subject, and partakes of both of them.

[46] Prior to 1948, all people born or naturalised in the dominions that comprised the British Commonwealth were known as British subjects. The British Nationality and Status of Aliens (in New Zealand) Act 1923 defined “British subject” in s 2(1) as

[A] person who is a natural-born British subject, or a person to whom a certificate of naturalization has been granted in New Zealand

[47] A person born in New Zealand was a British subject under the 1923 Act as of right, whereas an “alien friend residing in New Zealand” who wished to become a British subject needed to take an oath and satisfy the Minister of Internal Affairs of his or her credentials (ss 4 and 5). This position was carried over to the British Nationality and Status of Aliens (in New Zealand) Act 1928.

[48] In 1948 the British Nationality and New Zealand Citizenship Act provided for New Zealand citizenship. This could be obtained in three ways: (1) as of right by birth after 1948 (ss 6 and 7); (2) by registration as a result of ordinary residency or nationality of a number of Commonwealth countries listed in s 3(3) (ss 8 – 11); and (3) by naturalization (ss 12 – 14). Section 3(1) of the 1948 Act provided that every New Zealand citizen had the status of British subject. Again, therefore, the 1948 Act maintained a distinction between citizens/British subjects (which were synonymous) and aliens (defined in s 2(1) as people who were not British subjects).

[49] The Citizenship Act 1977 repealed the 1948 Act. It defines “alien” at s 2(1)

as follows:

alien means a person who does not have the status of a New Zealand citizen, a Commonwealth citizen (British subject), a British protected person, or an Irish citizen:

[50] Under s 8 of the Citizenship Act, aliens resident in New Zealand for the requisite amount of time (stipulated in s 8(2)) and satisfying certain requirements can apply for citizenship by grant. Citizenship by grant bears no material difference to

citizenship by naturalization under the Citizenship Act’s predecessors. Section 8 applies equally to British subjects (ie non-aliens) and aliens.

[51] Therefore the former distinction between citizens and aliens is, under the Citizenship Act, a distinction between citizens and non-citizens. It is true that the concept of “alien” has been maintained, and it does not include British subjects by virtue of s 2(1). This might suggest, prima facie, that “subject” forms some kind of middle ground between “citizen” and “alien”. But that is not so for three reasons.

[52] First, the reference in s 2(1) is not merely to “subject” but to “British subject”. There is no status of “New Zealand subject” falling between those of citizen and alien.

[53] Secondly, there is only one reference to aliens in the Citizenship Act, apart from its definition. Section 23 of the Citizenship Act confers the same property rights on non-citizens as are enjoyed by citizens. However this is qualified by s 23(2) and the Overseas Investment Act 2005: aliens may not own ships at all, and may not own significant personal or real property unless they are permanent residents. In summary, aliens and permanent residents are simply different types of non-citizen.

[54] Thirdly, any distinction between British subjects and aliens in the Citizenship Act is trivial only. Introducing the Citizens and Aliens Bill (as it was then called), the Minister for Internal Affairs, Hon D A Highet, said at (10 June 1977) 410 NZPD

553:

There have been many changes in the nature of the British Commonwealth since 1948 which have resulted in the countries of the Commonwealth placing increasing emphasis on their individual citizenships. The Bill seeks to recognise that emphasis while at the same time it does nothing to depart from due recognition of the common code of British subject or Commonwealth subject status. The Bill does, however, also seek to put on a more common footing aspirants for New Zealand citizenship who are on the one hand British subjects, and on the other aliens – this term meaning any non-British subject.

[55] Prior to the Citizenship Act, it was easier for British subjects to become naturalised than it was for aliens. British subjects had to be in residence for only

three years, whereas aliens needed to be in residence for five years. The Citizenship Act sets down a common waiting period for all non-citizens. At the Second Reading of the Bill ((9 November 1977) 415 NZPD 4377), the Minister commented that the standardisation of the citizenship granting process reflecting an “emphasis on New Zealand citizenship”.

[56] The result is that British subjects are not aliens under the Citizenship Act, but the primary emphasis is on non-citizens as compared with citizens.

[57] Mr Illingworth submitted that permanent residence is the modern incarnation of the old process of naturalization by denization, described by Blackstone at [45] above. Mr Illingworth pointed out that under s 3 of the 1923 Act, s 25 of the British Nationality and Status of Aliens Act 1914 (Imp) was incorporated into New Zealand law. Section 25 provides:

Nothing in this Act shall affect the grant of letters of denization by His

Majesty.

[58] Mr Illingworth argued that the distinction between aliens and British subjects in the 1923 Act, which is now a distinction between citizens and non-citizens, was without prejudice to the separate category of denizen. Therefore, that separate status remained, and remains today in the guise of permanent residency.

[59] We disagree. All that the saved s 25 achieved was to say that any person who had been granted letters of denization prior to coming to New Zealand was entitled to be recognised as a British subject. This ceased to be of any relevance after 1948, when all New Zealand citizens became British subjects, and again after 1977, when the emphasis shifted to citizenship.

[60] Additionally, the lack of a reference to s 25 in the Imperial Laws Application

Act 1988 means it is no longer a part of New Zealand law.

[61] Mr Illingworth argued that the indivisibility of the Crown means that the reference to “subject” in the Treaty must be read in a New Zealand context as meaning “subject of the Sovereign in right of New Zealand”.

[62] The problem with this submission is that the phrase “subject” has never been used, in any New Zealand statute or anywhere else, in the sense of “New Zealand subject”. The indivisibility of the Crown means that the Queen is as much the Queen of New Zealand as she is the Queen of Great Britain. It does not mean that the historical descriptor for the people of Great Britain (“British subject”) can be used to denote the people of New Zealand, given the statutory regime applying in New Zealand on citizenship matters.

Conclusions with respect to the meaning of “subject”

[63] We conclude:

(a) Prior to 1977, there was a clear distinction drawn in the legislation between British subjects and aliens. Aliens could become naturalized as British subjects. From 1948, all New Zealand citizens were deemed to be British subjects;

(b) After 1977 the distinction was simply between citizens and non- citizens. Under that Act, British subjects and aliens are both classes of non-citizen;

(c) The phrase “subject” has never been used in New Zealand other than to mean “British subject”. If the opposite were true, there would have been no need for the 1948 Act to specify that all New Zealanders were British subjects;

(d) It follows that art 4 of the Poland/NZ Treaty entitles either country to refuse to extradite their citizens: the word “subject” does not have any significance in relation to either Poland or New Zealand.

Should the case be remitted to the District Court? (2)

[64] Our conclusion that Mr Bujak is not a “subject” means that art 4 does not apply to him. In those circumstances, we uphold the submission of Mr Lange, that

the role of a District Court conducting a s 24 hearing in the context of the Poland/NZ Treaty is limited: the court simply determines eligibility for surrender, and does not go on to consider whether there are circumstances justifying a refusal to surrender someone who is otherwise eligible for surrender.

[65] That means that the very limited abuse of process jurisdiction described in Police v D applies in this case. Mr Illingworth argued for a broader jurisdiction, citing the comments of Lord Griffiths in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42 at 64 (HL) that the abuse of process jurisdiction of magistrates in the United Kingdom is confined to the fairness of the trial of the particular accused with whom they are dealing, covering issues such as delay or unfair manipulation of court procedures. We do not accept that that statement, made in the context of a serious abuse (the accused had been subjected to illegal rendition to the UK), represent the law in New Zealand: rather, we adopt the position outlined by this Court in Police v D.

[66] Applying Police v D, it would not be open to the District Court in the present case to stay the s 24 hearing because of delays which may affect the fairness of Mr Bujak’s trial or his ability to conduct his defence. Those are matters for the trial Court in Poland. If that is the extent of the delay argument which Mr Bujak intended to make in the District Court, then the argument is doomed to failure. To that extent, we agree with Panckhurst J that if the delay arguments which Mr Bujak wishes to pursue are confined to those described by Judge Erber in his 7 April 2006 decision, then those arguments will be unsuccessful.

[67] That said, we agree with Mr Illingworth that the sufficiency of the delay arguments was not an issue that was strictly before Panckhurst J, and that Mr Bujak should not be deprived of pursuing a stay of the proceedings in the District Court if he has evidence of matters which would meet the Police v D test in the present case. There is nothing in the material before us, or in the affidavit presented by Mr Bujak to the District Court, that indicates that any such arguments are available to him. But we accept that we may not have before us the full picture as the issue of delay was merely incidental to a disclosure argument in the District Court. The point should therefore be remitted to the District Court to allow Mr Bujak to pursue such

arguments if he has any basis for doing so in the light of what we have said on the issue.

[68] We therefore answer the second question for which leave to appeal was given (set out at [9](ii) above) as follows: it is not possible to rule out that possibility on the evidence before the Court.

Postscript: comment on s 8

[69] Our conclusion that Mr Bujak is not a “subject” for the purposes of art 4 means we differ from Panckhurst J on one aspect of his analysis of s 8. But this does not call into question his decision: rather it provides an alternative reason for his conclusion that art 4 of the Poland/NZ Treaty does not apply to Mr Bujak and that s 8 is therefore overridden by the Treaty in this case.

Solicitors:

Cousins & Associates, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent