Ipsofactoj.com: International Cases [2004] Part 5 Case 12 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

United States of America

- vs -

Cullinane

ANDERSON J

GLAZEBROOK J

WILLIAMS J

18 DECEMBER 2002


Judgment

Glazebrook J

INTRODUCTION

  1. The Government of the United States of America seeks the extradition of Mr. Cullinane to face charges of visa fraud, racketeering and alien smuggling and harbouring. The charges relate to his part in a scheme that arranged for New Zealand and Australian residents to enter the United States to work there as long distance truck drivers, contrary to United States immigration laws.

  2. Harding DCJ on 26 October 2000 determined that Mr. Cullinane was eligible for surrender in relation to the racketeering and visa fraud charges but not in relation to the alien smuggling and harbouring charges. He held that visa fraud was covered by cl 20 of Article II of the Treaty on Extradition between New Zealand and the United States (the US/NZ Treaty) and racketeering by cls 16 and 20. Alien smuggling and harbouring were not covered by the Treaty.

  3. Mr. Cullinane appealed against that determination by way of case stated pursuant to s68 of the Extradition Act 1999. By judgment dated 10 September 2001 Priestley J held that Harding DCJ was in error when he determined that visa fraud came within cl 20 and racketeering within cls 16 and 20. This meant, according to Priestley J, that Harding DCJ was in error when he held that Mr. Cullinane’s surrender was in accordance with the provisions of the US/NZ Treaty.

  4. On 26 October 2001 Morris J granted leave to the United States Government to appeal against that decision to this Court on condition that the United States Government meet Mr. Cullinane’s costs, including counsel’s fee, in any event. The appeal was to be on the following three questions of law:

    1. Is the offence of visa fraud covered by cl 20 of Article II of the Treaty on Extradition between New Zealand and the United States of America?

    2. Is racketeering covered by cls 16 and 20 of Article II of the Treaty on Extradition between New Zealand and the United States of America?

    3. Was the surrender of Robert David Cullinane in accordance with the provisions of the Treaty on Extradition between New Zealand and the United States of America?

  5. Mr. Cullinane applied to strike out the appeal on the grounds that no steps have been taken by the United States Government to give security for costs and thus that the appeal is deemed to have been abandoned. We need to deal with this preliminary question before considering the questions of law in this appeal.

    STRIKE-OUT APPLICATION: ARGUMENTS OF THE PARTIES

  6. The judgment of Priestley J was delivered on 10 September 2001 and the judgment of Morris J granting leave to appeal on 26 October 2001. The United States Government conceded that, if the Court of Appeal (Civil) Rules 1997 (the 1997 Civil Rules) apply and s18 of the Crown Proceedings Act 1950 does not, then security for costs was required within 14 days of Morris J’s decision as r7(4) of the 1997 Civil Rules provides that a notice of appeal is not required if the appeal is by way of case stated – on this, however, see below at para [16]. No argument relating to any possible foreign state immunity is raised. Rather, the United States Government argues that s18 does apply. Although as a matter of convention the country seeking extradition is listed as the party to the proceedings, the United States Government argues that in reality it is the Crown that is the party and that therefore no security for costs is required.

  7. As an alternative submission, the United States Government contended that the appeal is now covered by the Court of Appeal (Criminal) Rules 2001 (the 2001 Criminal Rules). A Notice of Appeal was filed the day after the new 2001 Criminal Rules came into effect and this notice was in accordance with Form 5 of those rules. Rule 12 provides that, if a notice of appeal is given out of time, it is treated as an application for extension of time for the filing of the appeal. The United States Government therefore applied (if that be necessary) for an extension of time for the filing of the appeal.

  8. Mr. Morgan, on behalf of Mr. Cullinane, argued that the appeal came within the 1997 Civil Rules at the requisite time and equally clearly was deemed abandoned under r11 when security for costs was not paid. In addition, Mr. Morgan submitted that the party to the appeal is the United States Government and not the Crown. The Crown’s involvement is merely to assist the United States Government. It is not acting on its own behalf. This means that s18 of the Crown Proceedings Act does not apply.

  9. Mr. Morgan further submitted that any application to appeal out of time in accordance with the 2001 Criminal Rules should not be granted as none of the matters usually taken into account in such applications applies. The fact that an appeal may now come within the 2001 Criminal Rules should not allow an appeal that has been deemed abandoned to be revived.

    DISCUSSION ON STRIKE-OUT APPLICATION

  10. The first question is whether the 1997 Civil Rules applied to these proceedings. Rule 3 of the 1997 Civil Rules provides that those Rules apply to all proceedings of the Court, except appeals in proceedings under Part XIII of the Crimes Act 1961. The now revoked Court of Appeal (Criminal) Rules 1997 (the 1997 Criminal Rules) appear to have been confined to appeals in proceedings under Part XIII of the Crimes Act 1961, although they did not contain a provision specifying their scope. However, both the 1997 Criminal Rules and the 1997 Civil Rules were made by Order in Council under s51C of the Judicature Act 1908. The 1997 Civil Rules were made on 1 September 1997. This was after the 1997 Criminal Rules, which were made on 25 August 1997. Even if the 1997 Criminal Rules were expressed in language suggesting that they applied to proceedings other than those under Part XIII of the Crimes Act then, as it was later in time, r3 of the 1997 Civil Rules had the effect of confining the application of the 1997 Criminal Rules to appeals and proceedings under Part XIII.

  11. Section 69 of the Extradition Act 1999 incorporates various specified sections of the Summary Proceedings Act 1957, including s144. An appeal to this Court under Part 8 of the Extradition Act against a decision of the High Court, brought in relation to a case stated by the District Court following a determination by the District Court concerning a person’s eligibility for surrender, is therefore an appeal pursuant to s144 of that Summary Proceedings Act.

  12. Section 3 of the Summary Proceedings Act 1957 makes various provisions of the Crimes Act 1961 applicable to summary proceedings under the Summary Proceedings Act 1957, but Part XIII of the Crimes Act is not so incorporated. Before the 2001 Criminal Rules were promulgated Mr. Cullinane’s appeal therefore clearly came within the 1997 Civil Rules, not being an appeal in proceedings under Part XIII of the Crimes Act, even though it clearly is an appeal in respect of a criminal matter – see Flickinger v Crown Colony of Hong Kong [1995] 1 NZLR 439 and Edwards v United States of America (CA6/02, 19 August 2002), a decision on an application for leave to appeal to the Privy Council in the extradition case referred to at para [63].

  13. The next question is whether security for costs was required under the 1997 Civil Rules. The interlocutory decision of this Court in Fleetwing Farms Ltd v Marlborough District Council (CA255/96, 3 July 1997) suggests that it was not. That decision concerned the question whether an appeal to this Court against a decision of the Environment Court under the Resource Management Act 1991 (RMA) was deemed to have been abandoned due to the appellant’s failure to provide security for costs on time. Like extradition appeals under the Extradition Act 1999, appeals under the RMA come to this Court via s144 of the Summary Proceedings Act (see s308 of the RMA). The appellant in Fleetwing had failed to pay security for costs and the respondent submitted that the appellant’s appeal should not be heard by this Court because it was deemed to have been abandoned under r34(2) of the Court of Appeal Rules 1955 (the 1955 Rules).

  14. Rule 5 of the 1955 Rules provided that, in the absence of express provision to the contrary in those Rules and with the exception of proceedings under the Criminal Appeal Act 1945, the 1955 Rules applied to criminal and civil appeals alike. Rule 34 governed security for costs – it was the predecessor of the current r11 and was in all presently material respects identical to r11. In the interlocutory Fleetwing judgment this Court held that security for costs was not required because r34 did not apply to appeals under s144. At pp 2-3 Barker J for the Court reasoned that s144 establishes a discrete process for appeals to this Court against decisions of the High Court on appeal from the District Court in summary criminal matters. In most cases, once leave has been obtained to appeal either from this Court or the High Court, the system prepares the documentation and arrangements are made for a hearing without any further formality (although on this point see para [16] below). Barker J saw no reason for importing the 1955 Rules into this process. He took the view that control of tardy appellants can and should be exercised by the Court granting leave by the imposition of conditions. In this regard he recognised a right for a respondent to go to the Court from which leave has been obtained to seek rescission of the order granting leave on the basis that the appeal is not proceeding with proper despatch.

  15. Barker J’s reasoning would lead to the conclusion that, while the 1997 Civil Rules applied to extradition appeals, r11 does not and that, if Mr. Cullinane was concerned by the United States Government’s failure to provide security for costs, he should, instead of seeking to have the appeal struck out under r11, have applied to the High Court for appropriate directions. Security could also of course have been sought (subject to any questions of foreign state immunity) as a condition of the grant of leave to appeal.

  16. This Court’s decision in Tapp v The Chief Executive of the Department of Work & Income (CA206/02, 2 December 2002) held that a notice of appeal must be filed for appeals governed by s144 of the Summary Proceedings Act 1957 but that there is no time limit for filing such a notice unless set by either the High Court or the Court of Appeal. Security (if it is required) must be given within fourteen days after the appeal has been brought. Under r7(4) an appeal is brought when the appellant inter alia files a notice of appeal. There was no notice of appeal filed in this case until after the 2001 Criminal Rules came into force (and the notice of appeal filed was under those Rules and not the 1997 Civil Rules).

  17. This leads to a further issue. The United States Government contends that, since 10 December 2001 when the 2001 Criminal Rules came into force, those Rules have applied to extradition appeals. Rule 4(1)(e) of the 2001 Criminal Rules provides that the 2001 Criminal Rules apply to "summary proceedings appeals and applications for special leave to appeal under section 144(3) of the Summary Proceedings Act 1957".

  18. Rule 3 of the 1997 Civil Rules and r4(1)(e) of the 2001 Criminal Rules are inconsistent in that r3 states that the 1997 Civil Rules apply to all proceedings in this Court, except those under Part XIII of the Crimes Act, while r4(1)(e) provides that the 2001 Criminal Rules apply to summary proceedings appeals (which are not included under Part XIII of the Crimes Act). As indicated above, the 1997 Civil Rules were made under s51C of the Judicature Act 1908 on 1 September 1997. The 2001 Criminal Rules (to the extent that they govern proceedings under the Summary Proceedings Act) were also made under s51C of the Judicature Act 1908 but were made on 3 December 2001. On the assumption that both instruments were made intra vires s51C, the argument is that r4(1)(e) of the 2001 Criminal Rules must be taken to have impliedly repealed r3 of the 1997 Civil Rules, given that r4(1)(e) was both enacted after r3 and uses more specific language. The 2001 Criminal Rules, if they now apply to extradition appeals, do not require security for costs.

  19. We do not find it necessary to decide whether extradition appeals (and presumably all other appeals to which s144 of the Summary Proceedings Act 1957 applies) now come within the 2001 Criminal Rules. We do note, however, that it is a further complicating factor.

  20. Against this rather confusing background it would not be appropriate that the appeal be struck out (even if there is or was an obligation to provide security). Mr. Cullinane has not been prejudiced by any failure to provide security as it would be inconceivable that the United States Government would fail to pay his full costs in accordance with Morris J’s decision.

  21. Given the decision above it is not necessary to decide the question whether the Crown is the true party to the appeal rather than the United States Government, but we would have thought that the correct position was as Mr. Cullinane submits that the party is the United States Government with the Crown providing assistance, including counsel.

  22. We now move on to consider the appeal itself. We first set out in more detail the factual background, the applicable legal principles and the charges faced by Mr. Cullinane before examining whether those charges come within Article II of the US/NZ Treaty.

    BACKGROUND FACTS

  23. Harding DCJ held that the following facts were proved or admitted at the hearing before him:

    [a]

    Between July 1996 and March 1999 a scheme operated that took nearly 200 truck drivers into the United States for them to be illegally employed in the United States as long haul truck drivers. The drivers obtained tourist visas and were admitted into the United States based on those visas while at all material times they intended to work.

    [b]

    Mr. Cullinane’s part in the process was that he was the recruiter of drivers in New Zealand. He recruited in seminars within New Zealand attended on occasions by him and on occasions by an alleged co-offender Mr. Melbourne.

    [c]

    He instructed the drivers what would be required when working. He arranged the completion of visa forms and either, as in the case of the evidence in connection with two drivers, himself instructed the false completion of the forms, or instructed drivers to contact Mr. Melbourne for instructions on what to put into the forms.

    [d]

    He was aware that the forms contained a variety of falsities. He was aware that the drivers did intend to work. He was aware that the purpose of the trips was not sight-seeing nor holidaying. He was aware that the length of stay was intended to facilitate a one year contract and he was aware of where they were going to stay. He was paid $450 for each driver recruited through a company, Insight Driving Technologies Ltd, of which he was the alter ego and sole shareholder.

    [e]

    He knew of the intended employment and directly or indirectly arranged for the issuing of visas based on false applications. In addition to the procurement fee of $450 for each driver he received 1 cent per mile driven by each driver recruited and he was responsible for instructing the drivers to set up a bank account into which they would receive their wages through Alewide Enterprise, the umbrella group.

  24. It is worth adding that the indictment states that Mr. Cullinane is listed as the director of Insight Driving Technologies Ltd and an officer of Alewide Pty Ltd, another company allegedly involved in the scheme. It is also worth adding that the indictment sets out particulars of the visa fraud charges, including that certain of Mr. Cullinane’s co-accused "secured employment for the [drivers] by use of the falsely procured visas [and] .... entered into contracts with United States trucking companies for the provision of alien drivers and represented that the [drivers] were authorized to stay and work in the United States based upon the falsely procured visas."

  25. We note here that it is clear that the visas in question did not authorise the drivers to work in the United States. The employment of the drivers is therefore not directly related to the visas, although there is an indirect link in that the visas were the means of entry into the United States.

  26. It appears from the particulars in the indictment and para [2] of the Case Summary in the affidavit of Ms Cynthia Stone, sworn on 9 March 2000, that the drivers entered into employment contracts with Mr. Cullinane’s co-accused or companies they controlled and that their services were then provided to the trucking companies. It is alleged that it was represented to the trucking companies that the drivers were lawfully in the US. It is also noted in para [2] of the affidavit of Ms Stone that the drivers were provided with false letters about their status and purpose of being in the US and were instructed to show these letters to immigration officials if necessary.

    CHARGES FACED BY MR. CULLINANE

  27. Mr. Cullinane is charged with visa fraud, alien smuggling and harbouring and racketeering. The indictment in relation to the visa fraud charges sets out that named individuals, including Mr. Cullinane, "together with other individuals, known and unknown to the Grand Jury, aiding and abetting one another, knowingly used, possessed and obtained and caused to be used, possessed and obtained non-immigrant visas, which were issued on the dates set forth below, knowing said visas to have been procured by means of false claims, false statements and fraud." Various particulars are then set out and these have all been covered in the discussion of the factual background above.

  28. The alien smuggling charges relate again to Mr. Cullinane and certain other named individuals. It is stated that those individuals "together with other individuals, known and unknown to the Grand Jury, aiding and abetting one another, knowingly encouraged and induced aliens to come to, enter, and reside in the United States, knowing and in reckless disregard of the fact that such coming to, entry .... and residence, was and would be in violation of law." Various particulars are then set out.

  29. The alien harbouring charges also relate to various individuals including Mr. Cullinane "together with other individuals, known and unknown to the Grand Jury, aiding and abetting one another, knowingly concealed, harboured, and shielded from detection, or attempted to conceal, harbour, and shield from detection in any place aliens, knowing and in reckless disregard of the fact that such aliens had come to, entered, and remained in the United States in violation of law and that such concealing, harbouring, and shielding was and would be in violation of law."

  30. The offence of racketeering has no New Zealand counterpart. As Priestley J indicates, federal racketeering statutes were first passed by Congress in the 1930s and were primarily designed to combat organised crime. According to Ms Stone’s affidavit, the statute cited in the indictment makes it a violation of United States criminal laws "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s (sic) affairs through a pattern of racketeering activity."

  31. An enterprise is defined as a group of individuals associated in fact, and Ms Stone deposes that case law has held that this requires proof of a group of people associated together for a common purpose of engaging in a course of conduct. Racketeering activity is defined as including certain criminal acts (visa fraud and alien smuggling and harbouring are included). A pattern of racketeering activity is found if a defendant commits at least two racketeering acts, sufficiently related to constitute a pattern, within ten years of each other.

  32. The racketeering charge in this case (see Count 1, para 28 of the indictment) is that certain named individuals (including Mr. Cullinane) "together with others known and unknown, being persons employed by and associated with the enterprise described [in the indictment], unlawfully and knowingly conducted and participated, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity through the commission of Racketeering Acts One through Eleven" [stated as being set out in Count 1, para 27 of the indictment, although actually set out in para 29]. The racketeering acts relied on are visa fraud and smuggling and harbouring of ten named individual drivers (but Mr. Cullinane is not named as being involved in all of these) and a money laundering conspiracy. It is not alleged that Mr. Cullinane was involved in the money laundering conspiracy.

  33. The enterprise alleged is constituted of various business entities, including Alewide Pty Ltd and Insight Driving Technologies, as well as certain individuals (including Mr. Cullinane). That enterprise is alleged to be an enterprise engaged in, and whose activities affected, interstate commerce and foreign commerce (Count 1, paras 18 and 19 of the indictment). Mr. Cullinane is set out as being the recruitment officer for the New Zealand office of the Alewide Group. His function is set out as being, among other things, to recruit New Zealand nationals to work in the United States for the Alewide Group (Count 1, para 12 of the indictment).

  34. It is also stated in the indictment that it was a purpose of that enterprise to use its associated individuals and entities to secure economic benefits for its members. The purpose is set out as being sought and accomplished by, among other means, visa fraud, alien smuggling, alien harbouring and money laundering in order to profit from the illegal employment of Australian and New Zealand nationals in the United States (Count 1, para 26 of the indictment). It is also set out as being a purpose of the enterprise to engage in conduct designed to strengthen the enterprise and to prevent government detection of their identities, illegal activities and proceeds of illegal activities. This purpose was accomplished among other means by conducting business under various entity names and maintaining bank accounts in Singapore, Australia and New Zealand under various entity names (Count 1, para 27 of the indictment).

    DECISIONS OF THE DISTRICT COURT AND THE HIGH COURT

  35. It has been assumed by all concerned that, because the definition of extradition offence in s4 of the Extradition Act is made subject to the US/NZ treaty, a three-part test results. It has been assumed that the Court must be satisfied that:

    [a]

    The offence charged against the person in the country seeking extradition is one of the offences mentioned in the Treaty (Articles I and II).

    [b]

    The offence is one which is punishable under the law of the country seeking extradition carrying a maximum penalty of not less than 12 months imprisonment (section 4(1)(a) of the Extradition Act).

    [c]

    Had the conduct of the person whose extradition is sought occurred in New Zealand it would have constituted an offence in New Zealand for which the maximum penalty is not less than 12 months imprisonment (section 4(2) of the Extradition Act).

  36. Harding DCJ held that the alien smuggling and harbouring charges did not come within Article II of the US/NZ Treaty and discharged Mr. Cullinane in respect of those charges. He held that these charges did not relate to fraud or the obtaining of property, money, or valuable securities but to smuggling aliens and keeping them in the United States. This meant that they are more in the nature of pure immigration offences that are not covered by Article II. This finding was not appealed.

  37. In relation to the visa fraud charges Harding DCJ held that those charges came within cl 20 of Article II but not within cl 16. These provide as follows:

    16.

    Obtaining property, money or valuable securities by false pretences or by conspiracy to defraud the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretence.

    ....

    20.

     

    Fraud by promoter, director, manager or officer of any company, existing or not.

  38. The decision that they did not come within cl 16 was on the basis that the visa fraud did not involve the obtaining of property, money or valuable securities. That decision was not appealed either to the High Court or to this Court. Priestley J did make some remarks in relation to cl 16, agreeing with Harding DCJ that visa fraud did not come within that clause. He said that for cl 16 to apply there has to be a nexus between obtaining property, money or valuable securities and the false pretences or conspiracy. While there was undoubtedly an alleged fraud on the United States immigration service and an alleged financial benefit to Mr. Cullinane and his co-offenders, the benefit was derived from the illegal immigrants and not from a defrauded United States public or immigration service.

  39. In relation to cl 20 and the visa fraud charges Harding DCJ accepted the submission made by the United States Government that Mr. Cullinane was a manager, a director or promoter of a company and involved in fraud and therefore that cl 20 applied. He rejected Mr. Morgan’s submission that such an interpretation would strain the wording of the Treaty inappropriately.

  40. In terms of the racketeering charge Harding DCJ held that racketeering in this context amounted to little more than multiple acts of visa fraud with certain other associated factors, which were in his view established in this case. As he had already concluded that visa fraud was covered under cl 20 of Article II, it followed that the racketeering charges were also covered. He also said that it was arguable that the racketeering was also covered by cl 16 "because the racketeering is really an organised continuing multiple event designed to produce money for those involved." He thus held that racketeering is a Treaty offence under both cls 16 and 20.

  41. Priestley J, on the other hand, held that cl 20 did not cover Mr. Cullinane’s alleged offending either in relation to racketeering or visa fraud. He pointed out that in all the counts Mr. Cullinane faces he and his alleged co-offenders are charged as individuals. He noted that various companies of which Mr. Cullinane was an agent, director or officer were amongst the various business entities which were allegedly part of the offences but said that any fraud was not fraud by a director, manager or officer of any company. As a result the United States Government’s submission that cl 20 applied was flawed both as a matter of interpretation and policy. If Mr. Cullinane had chosen to embark on the visa fraud and racketeering activities as an individual then cl 20 could have had no application. According to Priestley J it therefore flew in the face of both the interpretation and policy of cl 20 to suggest that the clause extends to this alleged offending only because part of the alleged racketeering business enterprise included a company.

  42. Priestley J also by implication concluded that, as cl 16 did not cover the visa fraud charges, it could not cover multiple counts of visa fraud (and in context that is what he considered that the racketeering charges amounted to).

  43. We summarise briefly below the conclusions reached by Harding DCJ on the other aspects of the case. With respect to the third limb of the three-part test set out in para 35 above, Harding DCJ concluded that the visa fraud and racketeering charges fell within ss229A and 257 of the Crimes Act 1961. He did not need to (and did not) consider whether alien smuggling and alien harbouring were offences under New Zealand law. Further, he did not examine in relation to the second limb of the test whether the United States Government was correct in alleging that Mr. Cullinane’s conduct, if it occurred, amounted to an offence against the laws of the United States, presumably because the concession to that effect made for Mr. Cullinane in this Court was also made before him.

  44. The Judge considered whether there was sufficient evidence against Mr. Cullinane in relation to the visa fraud and racketeering charges for him to be put on trial, and concluded that there was. He was satisfied that Mr. Cullinane was involved in offences committed in the United States and rejected the submission that his surrender would not accord with the provisions of the US/NZ Treaty (see s24(3)(b) of the Extradition Act).

  45. Finally, the Judge held that there were no relevant discretionary restrictions on surrender under s8 of the Extradition Act. In particular, he rejected the submission for Mr. Cullinane that the conduct alleged by the United States Government is too trivial to warrant surrender. This was on the basis of the number of drivers involved, the profits made through the illegal immigration scheme and the fact that the offending had continued until very recently.

  46. Because Priestley J held that the first limb of the test was not met he did not consider the second and third limbs, although he did make some remarks on the likely New Zealand position in the course of discussing the first limb. In particular, he noted that the immigration "scam" in which Mr. Cullinane is said to have been involved was essentially identical to conduct falling under s142 of New Zealand’s Immigration Act 1987, but inclined to the view that Mr. Cullinane’s conduct does not fall under s229A or s250 of the Crimes Act.

  47. Before this Court there was no dispute as to whether the second limb of the three-part test is satisfied Mr. Cullinane also accepts that the visa fraud charges would be offences under New Zealand law (namely under s229A of the Crimes Act 1961) carrying a maximum penalty of 12 months or over. Indeed, given that Mr. Cullinane’s part in the offences took place in New Zealand, Mr. Morgan submitted that it would have been open to the United States Government to seek Mr. Cullinane’s prosecution in New Zealand, rather than applying for his extradition.

  48. Mr. Morgan does, however, submit that the alleged conduct for the charge of racketeering would not constitute an offence in New Zealand. Both parties have asked that this Court provide a view on the second and third limbs if we allow the appeal in respect of the first limb.

    THE CORRECT TEST

  49. We do not think that the courts below applied the correct test. Both parties in the courts below and in argument before us proceeded on the basis that the requirement under the US/NZ Treaty that conduct for which extradition is sought falls within under Article II is engrafted onto the definition of extradition offence under s4 of the Extradition Act. We do not consider that the resulting three-stage test is applicable in the instant case. We invited the parties to file written submissions as to the applicability of this three-stage test and the principle of double criminality. The supplementary submissions of the United States Government and Mr. Cullinane expressed agreement with the approach adopted by the Court and set out below.

  50. There are two basic approaches by which states have in extradition treaties and any associated legislation identified the type of conduct which makes a person eligible for extradition, the enumerative and eliminative approaches: see Bassiouni, International Extradition: United States Law and Practice (3rd ed, 1996) at 396; Shearer, Extradition in International Law (1971) at 133-134. Treaties based upon the enumerative approach list offences for which extradition is permitted. Such treaties can also give effect to the principle of ‘double criminality’ - the principle that requires that offences be punishable under the laws of both countries. They can thus provide that extradition is permitted only where conduct is punishable by the laws of both contracting states, sometimes also referring to a threshold level of punishment in each state.

  51. Instead of listing individual offences, treaties and statutes based on the eliminative approach simply define extraditable offences as all conduct punishable by a sentence exceeding in severity an agreed minimum threshold. This approach almost invariably explicitly gives effect to the principle of ‘double criminality’.

  52. It is the eliminative approach that is embraced in s4 of the Extradition Act, which defines an extradition offence as an offence punishable under the law of the country seeking extradition by a maximum penalty not less severe than imprisonment for 12 months where the constituent elements of the offence would, if committed in New Zealand, have constituted an offence punishable under the law of New Zealand by a maximum penalty not less severe than a sentence of imprisonment for 12 months.

  53. Significantly for the instant case the definition of extradition offence in s4 is "subject to an extradition treaty". Furthermore, s11 requires that the Extradition Act as a whole be construed so as to give effect to an applicable extradition treaty. While s11 states that such a treaty cannot override certain core provisions of the Act, these core provisions are not relevant in the present case.

  54. Section 3(4) of the now repealed Extradition Act 1965 was materially identical to the current s11. In Mewes v A-G [1979] 1 NZLR 648 at 665-666 the High Court read down s3(4), but this approach was rejected in relation to the current s11 by this Court in Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] 3 NZLR 463 at para [16].

  55. As s11 requires that the Act be construed to give effect to an applicable extradition treaty we do not consider it appropriate just to add the US/NZ Treaty definition to the s4 definition. We consider that the test in Article II of the US/NZ Treaty replaces the test set out in s4, instead of merely being added to it (especially given the added "subject to" qualification in s4 itself). The proper inquiry for a court faced with an extradition request made by the United States is therefore whether the alleged conduct satisfies the requirements of the US/NZ Treaty, and the Court should no longer concern itself with the three-stage test that has been utilised to date in this case.

  56. The US/NZ Treaty employs the enumerative approach and does not contain an explicit double criminality requirement. Article I provides that each contracting party agrees to extradite persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II committed within the territory of the other. Article II provides a list of offences. Article IV provides that:

    Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offence of which he is accused had been committed in that place or to prove that he is the person convicted by the courts of the requesting Party.

  57. Finally, Article XVIII provides that:

    This Treaty shall apply to offences specified in Article II committed before as well as after the date this Treaty enters into force, provided that no extradition shall be granted for an offence committed before the date this Treaty enters into force which was not an offence under the laws of both countries at the time of its commission.

  58. The fact that the contracting parties chose not to use the eliminative approach, despite the fact that treaties based on it were extremely common by 1970 (see Shearer, Extradition in International Law at 135), suggests that the parties deliberately rejected the eliminative approach with its usual express double criminality requirement. Indeed, Bassiouni at 397 notes that the United States has found the eliminative approach impractical.

  59. In Factor v Laubenheimer (1933) 290 US 276 the Supreme Court of the United States considered the interpretation of a treaty using the enumerative approach – the Webster-Ashburton Treaty of 1842 between the United States and Great Britain and the Supplementary Convention of 1889. By a majority, the Court at (286-290) found that, because the Supplementary Convention contained an express double criminality requirement in relation only to some of the listed offences (those specified in classes 4 and 10 and the unnumbered class in Article I), no double criminality requirement existed in relation to the other classes of offence. The Court held that it was open to the contracting parties to a treaty to provide for extradition in relation to conduct which is not criminal in the country from which extradition is sought. It also stated that a double criminality requirement could not be imported from customary international law (at 287). Finally, (at 290-292) the Court held that language in Article X of the 1842 Treaty, materially identical to that of Article IV of the US/NZ Treaty and s24(2)(d) of the Extradition Act, did not create a double criminality requirement. It concluded that the words in issue related merely to evidence and procedure.

  60. We note that in Riley v Commonwealth of Australia (1985) 159 CLR 1 (at 8-9 and 12-13) Gibbs CJ and Wilson and Dawson JJ of the High Court of Australia adopted Factor v Laubenheimer’s interpretation of the language of Article X in relation to similar language in s17(6)(b)(i) of the Extradition (Foreign States) Act 1966 (Cth) and Article VI of the Treaty on Extradition between Australia and the United States of America of 1974. Their Honours, approving Factor v Laubenheimer, also noted that it is clear that international treaties may be framed in such a way as to require a person to be extradited for conduct which is an offence only in the requesting state (at 12). We note that Brennan J agreed with the majority (at 14) and Deane J agreed but said (at 16-17) that there is a strong presumption that double criminality is required even in ambiguous treaties.

  61. Like Article I of the Supplementary Convention referred to in Factor v Laubenheimer, Article II of the US/NZ Treaty appears expressly to require a type of double criminality in relation to at least one offence, but not others. We refer in particular to cl 7:

    Unlawful sexual acts with or upon children under the age specified by the laws of both the requesting and requested parties.

    [Emphasis added]

  62. In addition Article XVIII expressly requires double criminality where the US/NZ Treaty applies retrospectively but not otherwise. Articles II and IV were drafted in the way they were by persons who must be presumed to have been aware of the decision in Factor v Laubenheimer, and the contracting states deliberately chose to depart from the widely used eliminative approach without adding an express double criminality requirement to the US/NZ Treaty. All these factors strongly suggest that an explicit double criminality inquiry is not required by the US/NZ Treaty in relation to the offences listed in Article II unless expressly provided for in Article II (as in cl 7) or Article XVIII in respect of offences committed before the treaty came into force.

  63. Since the definition of extradition offence in s4 of the Extradition Act is subject to the US/NZ Treaty, it follows that the double criminality requirement in s4(1)(a) is excluded when the US/NZ Treaty applies and does not itself require double criminality. The three-stage test upon which the instant case has proceeded therefore is inapplicable. If the offences which the United States Government alleges Mr. Cullinane to have committed fall under Article II, the definition of extradition offence in s4 of the Extradition Act is satisfied, and no further inquiry is necessary in this regard. We note that this Court in Edwards v United States of America [2002] 3 NZLR 222 at para 14 expressly left open the question of whether the double criminality principle under s4 applies in relation to the US/NZ Treaty.

  64. It is of course unlikely that any conduct falling within Article II does not constitute an offence under the laws of both the United States and New Zealand. Indeed the Treaty is likely to have been negotiated and the offences specified precisely because they were offences in both contracting states – see Shearer, Extradition Law (supra) at 138 and Factor v Laubenheimer (supra) at 299-300. The main consequence of our conclusion therefore is a considerable simplification of the inquiry required by s4 in cases such as the present.

  65. Before proceeding, we consider that it is appropriate to clarify the meaning of s24(2)(d) of the Extradition Act, which, by virtue of s11(2)(b), cannot be overridden by an extradition treaty. Section 24(2)(d) provides that:

    (2)

    Subject to subsections (3) and (4), the person is eligible for surrender in relation to an extradition offence for which surrender is sought if—

    (d)

    The court is satisfied that the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act,—

    (i)

    In the case of a person accused of an extradition offence, justify the person's trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand; or

    (ii)

    In the case of a person alleged to have been convicted of an extradition offence, prove that the person was so convicted.

    We take the view that s24(2)(d), like the similar provisions considered in Factor v Laubenheimer and Riley v Commonwealth of Australia, addresses questions of evidence and criminal procedure and does not import a double criminality requirement. It is most unlikely that Parliament intended s24(2)(d) to function as a double criminality requirement which extradition treaties cannot override. The fact that the double criminality requirement in s4 can be overridden by extradition treaties and the interpretation given to language very similar to that of s24(2)(d) in Factor v Laubenheimer and Riley v Commonwealth of Australia strongly militates against such an interpretation.

  66. We now move on to the test for interpreting Article II. This Court in Edwards v United States of America (supra) set out the approach that should be adopted. The statement of Lord Russell of Killowen in In re Arton (No 2) [1896] 1 QB 509, 517 that extradition treaties ought to receive a liberal interpretation taking account of their language, object and intent and the remarks of Lord Bridge of Harwich in R v Governor of Ashford Remand Centre, ex parte Postlethwaite [1988] AC 924, 947 to similar effect were cited (at para 25). It was also noted that the principles set out in those cases were repeated or referred to in the recent extradition decision of R (Al-Fawwaz) v Brixton Prison Governor [2002] 1 AC 556 at 574, 581, 593, and 597. The Court in Edwards (supra) at para 27 stated that there is no reason why the general rule of interpretation of treaties now stated in Article 31(1) of the Vienna Convention on the Law of Treaties should not be applied to extradition treaties. Article 31(1) provides as follows:

    a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

  67. We also refer to the US Supreme Court decision in Factor v Laubenheimer (supra) which emphasised the need to give treaties a "liberal" interpretation: ".... if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging them, the more liberal construction is to be preferred" (p 293). We note further that s 5(2) of the Extradition Act makes it clear that the focus is not on the nomenclature of the offences nor on the constituent elements of the offences. The focus at this stage is whether the totality of the acts or omissions alleged to have been committed comes within the description of the offence in Article II, interpreting the words in Article II in the manner described above.

  68. There is one further point. In this case Mr. Cullinane’s actions took place in New Zealand, although designed to secure the drivers’ entry into the United States. On the basis of R (Al-Fawwaz) (supra) both parties are agreed that this is not a bar to his extradition. We are inclined to agree. Article I of the US/NZ Treaty provides for the extradition from a requested country of persons "charged with or convicted of any of the offences mentioned in Article II of this Treaty committed within the territory of the other". Section 4 of the Extradition Act does not expressly state that an offence must have been committed either in the territory or within the jurisdiction of the requesting state, but since s11 requires the Act to be construed in accordance with the Treaty and since s4(1) is subject to the Treaty, it would appear that Mr. Cullinane’s extradition is permitted under New Zealand law only if it accords with Article II.

  69. In R (Al-Fawwaz) (supra) the House of Lords held that references to the jurisdiction of a requesting state in the Extradition Act 1989 (UK), the Extradition Act 1870 (UK) and the relevant extradition treaty between the United Kingdom and United States Governments included its territorial and extraterritorial jurisdiction. In R v Governor of Brixton Prison, ex parte Minervini [1959] 1 QB 155 Lord Parker CJ equated a reference in an extradition treaty to the territory of a requesting state with its jurisdiction. The fact that piracy by law of nations is included as an extraditable offence in Article II of the US/NZ Treaty, despite the reference to territory in Article I, indicates that Lord Parker’s approach is applicable (see also R (Al-Fawwaz) at 595 per Lord Millet and at 605 per Lord Rodger).

  70. We now proceed to answer the questions in the case stated. We examine the particular offences with which Mr. Cullinane is charged and whether they come within Article II. Of the clauses in Article II we have been asked to consider only cls 16 and 20 (set out above), and only in relation to the visa fraud and racketeering charges. Harding DCJ conclusions in relation to the alien harbouring and smuggling charges are not under appeal.

    IS VISA FRAUD COVERED BY CLAUSE 20?

    Arguments of the Parties

  71. The first question we have been asked is whether the offence of visa fraud is covered by cl 20 of Article II. We note again that Harding DCJ’s conclusion that visa fraud was not covered by cl 16 of Article II was challenged neither before Priestley J nor this Court.

  72. The United States Government submits that cl 20 of Article II requires fraud by a promoter or other officer committed either against the company, or using the company as a vehicle for fraud. Using a company as a vehicle for fraud amounts to acting in the capacity of an officer of a company in committing fraud as a means of facilitating a fraudulent transaction. The United States Government submits that it is immaterial that the involvement of the companies in the scheme is not an element of the charge of visa fraud. All conduct that is part of the criminal transaction should be taken into account. It is accepted by the United States Government, however, that cl 20 cannot be read literally. Otherwise any person accused of fraud could potentially be eligible for extradition if that person is, was or could be in the future a promoter, director, manager or officer of any company, given that cl 20 refers to a company "existing or not".

  73. Mr. Cullinane submits that the Priestley J’s decision is correct. He submits that the clear words of cl 20 require there to be some connection between the fraud and the fact that the person charged is the promoter, director, manager or officer of any company. No element of the charge (either as shown in the indictment or the United States statute) requires proof of any such thing. In the absence of reference to the status of the accused (as a company director or officer etc) as being an essential element of the charge itself, cl 20 cannot apply.

    Discussion

  74. In the visa fraud charges the first 17 paragraphs of the indictment relating to the racketeering charge are repeated. In para 12 of the indictment it is stated that Mr. Cullinane was the recruitment director for the New Zealand operation of the Alewide Group and that he is listed as the director of Insight Driving Technologies and an officer of Alewide Ltd. In terms of the visa fraud charges themselves neither Insight Driving Technologies nor the Alewide Group is mentioned, either in the charges or the particulars. The United States Government submits that the companies were an integral part of the scheme as a whole as the contracts with the Alewide Group meant that the trucking companies purchased services from that group rather than dealing directly with the recruits. The companies were also used to transfer the proceeds out of the United States of America. This may have been the case, but this is not clear from the indictment relating to the visa frauds. The transfer of funds out of the United States is not mentioned in the part of the indictment relating to the visa fraud charges and it is two individuals who are mentioned as entering into contracts with the trucking companies and not the Alewide Group.

  75. It appears likely that the offences in Article II were in fact largely adopted from the list of offences contained in the Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America of 1931 and the list in the 1889 Supplementary Convention to the 1842 Webster-Ashburton Treaty. Article 3 cl 17 of the 1931 Treaty provided that "Fraud by a bailee, banker, agent, factor, trustee, director, member, or public officer of any company, or fraudulent conversion" was an extraditable offence.

  76. Turner, Russell on Crime (1964) at 1122-1127 indicates that there were numerous statutory offences relating to fraud by company directors and officers in the United Kingdom at the time of the 1889 Supplementary Convention and the 1931 Treaty. All of them related in some way to the relationship between the directors or officers and the company’s shareholders or creditors. Equivalent statutory provisions in state criminal codes in the United States include, for example, s219 of Michigan’s Penal Code, s67 of Massachusetts’ Penal Code and the now repealed s53-354 of Connecticut’s Penal Code. The drafters of the 1889, 1931 and 1970 Treaties must clearly have had such provisions in mind when they drafted Article II cl 20 and its predecessors. The fact that cl 20 does not define the conduct to which it relates in as much detail as does, for example, s250 of the Crimes Act 1961 (liability for false statements by directors, promoters etc of company intended to deceive shareholders or creditors), is in all likelihood explained by the fact that it was based on the similar provisions in the 1889 and 1931 Treaties, in which general language was desirable because the Treaty provisions referred to a large range of related but varied offences under United Kingdom and United States legislation.

  77. We consider that, even giving a liberal interpretation to cl 20, the involvement of the company must be an essential element of the charge and relate in some way to the relationship between the company and its shareholders or creditors. The most that can be said here from an examination of the indictment is that the use of companies is alleged to have rendered detection more difficult (and this is only clear from Count 1, para 27 of the indictment that relates to the racketeering charge and not the visa fraud charges). Merely making detection more difficult does not make the company or Mr. Cullinane’s status in relation to the company an essential part of the crime itself. Detection is separate from the crime. We therefore answer the first question in the negative.

    IS RACKETEERING COVERED BY CLAUSES 16 AND 20 OF ARTICLE II?

    Submissions of the Parties

  78. The United States Government argues that racketeering is covered by Article II. It repeats the same arguments in relation to cl 20 but also points out that association in a legal and factual enterprise is an element of the racketeering charge and in this case the association includes a group of incorporated companies. The conduct of Mr. Cullinane relevant to the essential elements of the charge can, it is said, therefore be characterised as fraud by the officer of a company.

  79. In relation to cl 16, the United States Government’s argument appears to be that there was a conspiracy to defraud the United States immigration authorities in that it was designed to deceive them into allowing the drivers into the United States. The fraud allowed the drivers to enter the United States labour market illegally and Mr. Cullinane to receive $450 for each recruit and 1 cent for every mile driven. It is said that the requirements of cl 16 are therefore met. It is submitted that the clause does not always require a close nexus between the fraud and the obtaining of the benefit in the form of property, money or valuable securities.

  80. Mr. Morgan submits on Mr. Cullinane’s behalf that it is necessary to examine what Mr. Cullinane is charged with to see if it comes within Article II. He submits that the substance of the charge is that Mr. Cullinane was associated with an enterprise of a particular type and in conducting the business of that enterprise committed two or more similar crimes which were part of the enterprise’s business. It is fallacious to argue that, because the crimes committed in conducting the business of the enterprise came within Article II, racketeering comes within Article II as the essence of the charge of racketeering is wider than this.

  81. In relation to the United States Government’s submission that the companies are an essential part of the charge of racketeering Mr. Cullinane submitted that Priestley J was correct when he held that not to be so. Priestley J said that, if Mr. Cullinane had chosen to embark on the alleged racketeering activities and visa fraud as an individual or as a member of a partnership, then there could be no argument that cl 20 applied. It would therefore be against the words of cl 20 and their policy to suggest that the clause applied merely because part of the alleged racketeering business enterprise included a company.

    Discussion

  82. Mr. Cullinane’s argument that somehow the entirety of the conduct under the racketeering counts must fall within the Article II offences does not appear to accord with the policy underlying Article II. The aim was to ensure that extradition can occur only where certain threshold requirements regarding an accused’s conduct are met. The fact that the offence charged by the requesting state requires prosecutors in that state to prove elements additional to those implicit in the Article II offences is irrelevant, unless the additional elements substantively change the nature of the conduct alleged. In relation to the visa fraud charges, Mr. Cullinane’s involvement in an enterprise and the pattern of offending should be seen simply as aggravating factors and do not take the conduct alleged outside Article II.

  83. Faced with the United States crime of Continuing Criminal Enterprise (CCE), which is similar to racketeering, Gibbs CJ and Wilson and Dawson JJ of the High Court of Australia in Riley v The Commonwealth (supra) at 7-8 appeared to reason along similar lines. We note for completeness, however, that there is no equivalent in either the Extradition Act or the US/NZ Treaty of s4(1A) of the Australian legislation (Extradition Foreign States Act 1966). That provision read as follows:

    An offence against the law of, or of a part of, a foreign state is an extradition crime for the purposes of this Act if, and only if, the act or omission constituting the offence or the equivalent act or omission, or, where the offence is constituted by two or more acts or omissions, any of those acts or omissions or any equivalent act or omission, would, if it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia ....

    [emphasis added]

  84. Bassiouni (supra, at 423) notes that RICO (racketeering) and CCE are, for all practical purposes, the aggregation of more traditional crimes and are intended to increase the penalties, as well as to facilitate prosecution and conviction. He went on to say that these offences have been problematic in relation to extradition and states that "the approach has essentially been to consider the components of such crimes as RICO and CCE as the equivalent of those offences contained in the criminal law of the requested states". He does refer to the difficulties where acts which are not extraditable are included in the composite charges.

  85. Adopting the approach taken by the High Court of Australia and Bassiouni, we now consider the components of the offence of racketeering. We have held that the visa fraud charges do not come within cl 20. The same reasoning therefore applies to the component of the racketeering charges based on visa fraud except in one particular. As pointed out by the United States Government, the existence of an enterprise is a necessary element of the charge of racketeering. We agree, however, with Priestley J that the existence of a company as part of that enterprise is not a necessary part of that charge and therefore agree that the fact that an enterprise contains a company is not enough to bring the particular racketeering component of visa fraud under cl 20.

  86. We now turn to cl 16. As indicated above, this provides as follows:

    (1)

    Obtaining property, money or valuable securities by false pretences or by conspiracy to defraud the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretence.

  87. The United States Government submits that money was obtained by Mr. Cullinane (i.e. the $450 per driver and the 1c per mile) through the conspiracy to defraud in relation to the visas as, without the visas, the drivers would not have been in the United States. In our view it is likely that a direct nexus between the obtaining of the money and the fraud is required. In this case the fraud relates to the obtaining of the visas. One of the particulars in the visa fraud charges themselves was that work was obtained through the falsely procured visas. That is not so. Being in the country gave the drivers the opportunity to work but the visas did not permit the drivers to work. We thus doubt that there is the required direct nexus. The particulars also allege that, based on the falsely procured visas, certain of Mr. Cullinane’s co-offenders represented to the trucking companies that the drivers were able to stay and work in the United States. The visas did not allow the drivers to work and so again we doubt there is the necessary direct link between the visas and any alleged false pretences or fraud in relation to the trucking companies. Because of the decision below, however, we do not need to decide this point.

  88. There is a further possibility. If the visas were documents issued by the US Government rather than merely stamps put in the drivers’ passports, it could be argued that Mr. Cullinane was a party to the drivers’ obtaining property (the visa documents) by means of the false representations in their application forms regarding the purpose of their proposed entry into the United States. The promises about their future conduct which they did not intend to keep could be seen as amounting to false pretences under cl 16. But if no piece of paper was obtained from the US Government by means of the false representations in the application forms it is more difficult to see how Mr. Cullinane’s conduct or the drivers’ conduct could fall within cl 16. We do not, however, exclude the possibility that the transference of ink by means of a stamp may constitute the obtaining of property. But we have no information as to the exact nature of the visas. Nor was the argument for the US Government advanced in this manner at any stage of the proceedings.

  89. We make one further point. It is not just visa fraud that is relied upon as a component of the racketeering charge. The acts alleged also include alien smuggling and harbouring and money laundering. As indicated above, it is not alleged that Mr. Cullinane was involved with the money laundering. Harding DCJ finding that alien smuggling and harbouring do not come within Article II has not been appealed. Allowing extradition for racketeering in such circumstances could be a back door means of achieving extradition for offences that, charged separately, would not allow extradition.

  90. In our view Article II must be interpreted in the light of the speciality principle in Article XIII. The need to prevent extradited persons from being tried for crimes which are not listed in Article II - and for which they cannot therefore be extradited - justifies a restrictive and cautious approach to umbrella crimes like racketeering. In addition, Article II was intended exhaustively to specify extraditable offences and it should not be possible for extradition to occur for offences not included in Article II via umbrella crimes. This means that, even were visa fraud to come within cl 16, the racketeering charge as presently framed would not come within cl 16 because of the extra elements presently forming part of the charge (whether as particulars or as a substantive part of the charge). We therefore answer the second question in the negative as well.

  91. While we have not heard argument on the meaning of s38 of the Extradition Act, on its face that provision suggests that it is open to the Government of the United States to make a fresh request for Mr. Cullinane’s surrender under s18 and commence fresh extradition proceedings against him. Obviously any such fresh proceedings would need to be consistent with our comments in paras [88], [89] and [90] above. We also note that, even if Mr. Cullinane’s conduct does not fall within the US/NZ Treaty, it may be open to the United States Government to make an individual request for extradition under s60(1)(ii), but we have not heard argument on that provision either.

    RESULT AND COSTS

  92. For the reasons given we hold that in the circumstances of this case:

    1. The offence of visa fraud is not covered by cl 20 of Article II of the Treaty on Extradition between New Zealand and the United States of America.

    2. The offence of racketeering is not covered by cl 20 of Article II of the Treaty on Extradition between New Zealand and the United States of America and (on the basis of the material before us and as presently charged) is also not covered by cl 16 of Article II.

    3. The surrender of Robert David Cullinane was therefore not in accordance with the provisions of the Treaty on Extradition between New Zealand and the United States of America.

  93. The appeal is therefore dismissed and we order the discharge of Mr. Cullinane under s64(4) of the Extradition Act. There is no need for any order for costs as Morris J made an order that full costs be paid to Mr. Cullinane as a condition of the grant of leave to appeal.


Cases

Flickinger v Crown Colony of Hong Kong [1995] 1 NZLR 439; Fleetwing Farms Ltd v Marlborough District Council (CA255/96, 3 July 1997); Mewes v A-G [1979] 1 NZLR 648; Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] 3 NZLR 463; Factor v Laubenheimer (1933) 290 US 276; Riley v Commonwealth of Australia (1985) 159 CLR 1; Edwards v United States of America [2002] 3 NZLR 222; In re Arton (No 2) [1896] 1 QB 509; R v Governor of Ashford Remand Centre, ex parte Postlethwaite [1988] AC 924; R (Al-Fawwaz) v Brixton Prison Governor [2002] 1 AC 556; R v Governor of Brixton Prison, ex parte Minervini [1959] 1 QB 155

Legislations

Treaty on Extradition between New Zealand and the United States: Art.II (cl.20, cl.16), Art.IV, Art.XVIII

Extradition Act 1999: s.4, s.8, s.11, s.24

Extradition Act 1965: s.3(4)

Crimes Act 1961: s.229A, s.250, s.257

Webster-Ashburton Treaty of 1842 between the United States and Great Britain & Supplementary Convention of 1889 

Extradition (Foreign States) Act 1966 (Cth):  s4(1A), s.17(6)(i)

Treaty on Extradition between Australia and the United States of America of 1974: Art.VI

Extradition Act 1989 (UK)

Extradition Act 1870 (UK)

Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America of 1931: Art.3 (cl.17)

Penal Code [Michigan]: s.219

Penal Code [Massachusetts]: s.67

Penal Code [Connecticut]: s.53-s.354 (repealed)

Authors and other references

Bassiouni, International Extradition: United States Law and Practice (3rd ed, 1996)

Shearer, Extradition in International Law (1971)

Turner, Russell on Crime (1964)

Representations

MJ Ruffin and MA Soper for Appellant (instructed by Crown Law Office, Wellington)

PJ Morgan for Respondent (instructed by AJ  Nolan, Hamilton)


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