Tilson v New Zealand [2009] EWHC 1410 (Admin)

[2009] EWHC 1410 (Admin)

Case No CO/12490/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 2nd June 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE PILL

MR JUSTICE CRANSTON

Between

ANDREW TILSONClaimant

Between

GOVERNMENT OF NEW ZEALANDDefendant

Computer-Aided Transcript of the Stenograph Notes of

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Mr G Lee (instructed by Messrs Christian Khan) appeared for Claimant

Mr James Hines (instructed by the Crown Prosecution Service) appeared for Defendant

J U D G M E N T

LORD JUSTICE PILL:

[1]This is an appeal against a decision of District Judge Tubbs sitting in the City of Westminster Magistrates' Court on 28th October 2008.

[2]The Government of New Zealand had requested the extradition of Mr Andrew Graham Tilson. Having heard arguments,

the judge stated at the conclusion of her judgment:

"I find that the defendant's return to New Zealand is not barred by reason of the passage of time or by reason of any other bar set out in s.79(1) of the Act [that is the Extradition Act 2003 ("the 2003 Act")]. I find that his return would be compatible with Convention rights within the meaning of the Human Rights Act 1998. In accordance with s.87(3) of the Act, therefore, I send his case to the Secretary of State for her decision whether he is to be extradited."

On 18th December 2008, the Secretary of State ordered extradition.

[3]When the court sat this morning, an application for an adjournment was made on behalf of Mr Tilson. I will refer to that but it is better first to state the issues which arose and the findings of the District Judge.

[4]The request was made by the New Zealand government in relation to 28 allegations that include fraud, money laundering and participation in an organised crime group contrary to the Crimes Act 1961 (that is the New Zealand Crimes Act) committed between 12th November 1997 and 12th December 2002. Both the Government and Mr Tilson were represented by counsel at the hearing and a skeleton argument had been submitted on behalf of the defendant, who also gave oral evidence to the judge. The offences were alleged to have been committed by the appellant within the territory of New Zealand between 12th November 1998 and 12th December 2002, all but one of them from about May 2001 to December 2002.

[5]The one issue raised by the defence was that the extradition was barred on the grounds it would be both unjust and oppressive to extradite him by reason of the passage of time (section 79(1)(c) and section 82 of the 2003 Act). The defence submission, as recorded by the judge, was:

"(a) There is an unwarranted delay in requesting extradition for which the New Zealand authorities are wholly culpable; (b) Fair Trial is now not possible owing to the loss of 'critical material relevant to his defence' and the unavailability of key witnesses; and (c) It would be oppressive to extradite Mr Tilson as he has established a business and private life in the UK and has been given a false sense of security by the inaction of the New Zealand authorities."

[6]Mr Lee has addressed the court today and has referred to evidence in relation to the second of those grounds. He has summarised what we have previously read in the "outline defence case statement" presented to the District Judge as to why a fair trial in New Zealand is said not now to be possible. The essential submission is that documents said to be crucial to the appellant's defence are no longer available. The appellant describes himself as being a manager rather than a director of the company which employed him. In relation to the many offences, it is submitted that crucial documents are no longer available. The appellant claims that he had been a whistle blower and not a participant in the various frauds. A witness, Mr Scoble, is no longer available to the defence. Another witness has died.

[7]These points were put to and considered by the learned District Judge. At a time when he was on bail for an alleged assault on his wife, with a condition of residence at an address in New Zealand, the appellant left that country on 12th December 2002. His evidence to the District Judge was that he was unaware of the arrest of Orchard, with whom the appellant is alleged to be connected. It was claimed that the appellant was unaware of the police investigation into his conduct in those alleged frauds until he was arrested in the United Kingdom in 2008. Neither his wife nor his brother-in-law, even though he had frequent contact with them, had told him of the investigations.

[8]The Government submission was that the appellant had left New Zealand because of, and shortly after, the arrest of Orchard in order to avoid the investigation of his conduct in these frauds. The prosecution case was that he was well aware of the investigations and had as a result avoided returning to New Zealand ever since, even to see his children, who for some years have been resident there.

[9]The District Judge set out the series of transactions. In October 2002, New Zealand police commenced an investigation into Orchard's conduct. He was charged with 703 offences, including fraud, forgery and money laundering. He pleaded guilty to most of those charges and was sentenced to a term of imprisonment in 2002. A further term was imposed in 2003. Evidence was placed before the District Judge of extensive contact between Orchard and the appellant in 2001 and 2002. The District Judge gave the "Heta transaction" and the "Aaron Scoble transaction" as examples of that. It emerged that Scoble was the brother-in-law of the appellant. Reference was also made to the Hannon loan, secured in early 2002, just prior to Orchard's arrest. The appellant was the sole signatory of an account involved in that alleged fraud. He maintained he was unaware of a substantial sum of money paid into the account.

[10]The appellant's evidence before the District Judge was that his departure was an unconnected coincidence with the investigation into Orchard. He had received threats to his life from individuals who were unnamed. He and his family left New Zealand on 12th December 2002. His wife and children later returned to New Zealand but he never had. Mr Hines for the Government of New Zealand has given more detail about the Hannon episode by reference to evidence available.

[11]Having considered the evidence, the District

Judge found at page 7 of her judgment:

"I did not find Mr Tilson to be a witness of truth. On the evidence before me I am satisfied that Mr Tilson was well aware in November 2002 that a considerable sum was shortly to be paid into a bank account of which he was the sole signatory on the instructions of Orchard and that he was aware of Orchard's arrest on 14 November 2002. That was why he left New Zealand so suddenly and in breach of his bail conditions. I did not find his assertion that he left New Zealand because of threats of violence either credible or supported by any evidence beyond previous assertions by his wife and himself. The further evidence from Mr Ruston suggests that those assertions of threats against himself were made by Mr Tilson early in 2001: many months before his 'sudden' departure in December 2002. I also find that he was well aware of the Police investigation into his role in these frauds long before his arrest in the UK in 2008. I am satisfied so that I am sure that he has not told the truth as to those matters and the reason he has lied is to conceal the fact he left New Zealand to avoid investigation and prosecution for these fraud allegations."

[12]On behalf of the appellant, Mr Lee takes two points. I refer to the first of them now. He submits that those findings of fact had insufficient regard to and misunderstood the evidence. He relies particularly on a statement of the judge at page 6 in which reference was made to an exhibit attached to the affidavit of a New Zealand police officer. That purported to record a statement made by the defendant's wife, Mrs Lisa Tilson, on 30th August 2007:

"Amongst other things she is recorded as saying 'He (Tilson) has no intention of returning to New Zealand as he is aware that there are charges out against him. He is obviously aware the assault charge is still active and he also believes there is a fraud charge.'"

In evidence, Mr Tilson denied that that was correct.

[13]Mrs Tilson made a statement, much later in October of 2008, which was before the District Judge. In that statement she challenges the accuracy in many respects of the note of the police officer. Whilst she does not specifically challenge the statement on which the judge relied, Mr Lee submits that it was unsatisfactory and amounting to an error of law to fail to refer to the later evidence, which, we are told, was made available to the judge following the oral hearing but before she gave judgment. The judge was plainly aware of this statement, not only of Mrs Tilson but the statement by Mr Ruston and the statement by Mr Liddell, to which Mr Lee has referred us, which attempt to put the appellant in a different light.

[14]Mr Hines, for the government, submits that the statement alleged to have been made in August 2007 is far from the only evidence on which the judge relied in reaching the conclusion she did. He refers particularly to the sequence of events already mentioned in relation to the Hannon episode. The evidence about that is set out at paragraphs 97 to 100 in the skeleton argument of the Government of New Zealand. The circumstances of departure are set out at paragraph 101.

[15]This judgment was a reserved judgment and shows every sign of a judgment prepared following a careful and conscientious consideration of the evidence. It is comprehensive and clear in its findings. Before expressing a general conclusion, I refer to other findings of fact made. Having referred to the authorities and the case of Gomes, to which it will be necessary to refer, the judge found, page 8, "I do not find the defendant is precluded from relying on the bar of the passage of time". However, having made that finding, the judge considered what weight could be given to it and concluded at paragraph 10:

"In all the circumstances I do not find that the New Zealand authorities have been culpable in any way for undue delay in the passage of time that has elapsed between the commission of these alleged offences and these extradition proceedings."

In the course of reaching that conclusion,

the judge stated:

"The evidence necessary to prove the guilt of Mr Tilson and to support his extradition was not available in the earliest stages of investigation. The New Zealand Police first considered the possibility of extraditing Mr Tilson in mid 2006."

[16]Thus, submits Mr Lee in relation to that, this is not a case where the fleeing has been the cause of the delay in the bringing of charges. According to the Government's case, charges were not brought until much later, not because of the non-availability of the appellant in New Zealand, but because it was only after the Orchard proceedings and other proceedings that the full case against the appellant emerged.

[17]The judge fairly made the point that issues were raised which "would be a matter for trial and is not relevant to the issue of the passage of time". Finally, the judge concluded:

"I do not find it would be unjust by reason of the passage of time to extradite Mr Tilson."

The judge referred to the decision of this court in a New Zealand case, Woodcock v Government of New Zealand [2004] IWLE 1979, in which the court had regard to the safeguards available to defendants in New Zealand, not dissimilar, it was found, to those available within this jurisdiction.

[18]In terms of the delay, and it will have been noted that the judge did also make a finding under the Human Rights Act, (though delay was argued in relation to extradition rather than the Convention) the judge referred to the new relationship which the appellant had formed:

"Although still married to Lisa Tilson the defendant is separated from her and has formed a new relationship with his partner, Fiona. He has been seeing her since December 2006. He fears this relationship will founder if he were to be returned to New Zealand. There are no children of that relationship. He has children by his wife with whom he keeps in contact by telephone and by seeing them on holidays (outside New Zealand). Those children reside in New Zealand. In the UK he has a mortgage and a successful business in a company called 'Rail Commission and Support Ltd.' He fears the company would fail without his technical knowledge and presence."

[19]The judge rejected the submission that the appellant had been given a false sense of security by the New Zealand authorities not taking action against him for some years. The judge noted that the appellant had never been given any indication that he was not to be prosecuted. The judge concluded:

"The defendant has not established on the balance of probabilities, or at all, that it would be oppressive by reason of the passage of time for him to be extradited to New Zealand."

[20]This morning, the appellant applied by counsel for an adjournment relying on the contents of a solicitor's letter dated 22nd May 2009, that is two weeks ago. It was received in the court office on 26th May and the present solicitors say that they were instructed on 1st May and conferred with counsel on 21st May. The appellant had parted company with his previous solicitors. He had been granted a representation order to cover these proceedings, providing both solicitor and counsel on 8th January 2009. It emerged at that conference that counsel of first choice would not be available on 2nd June, that is today, the date fixed for the hearing. On 13th May, Lloyd Jones J had ordered that the appeal was to be heard by 5th June 2009. Seven months have elapsed since the order of the Magistrates' Court and five months since the deportation order was made.

[21]Apart from the non-availability of counsel, it was submitted that there should be an adjournment because, since the decision in the Magistrates' Court, the appellant's wife and children, who are United Kingdom citizens, were "forced" to travel to the United Kingdom and are currently living with and now supported by the appellant. They had left New Zealand with him in 2002 but had subsequently returned in 2006. In a statement dated 16th May 2009, Mrs Tilson says that she arrived in the United Kingdom in February 2009 because she was harassed in New Zealand by a police officer. Thus Mrs Tilson and children came to the United Kingdom about seven weeks after the Secretary of State ordered for the appellant's extradition to New Zealand.

[22]I have to comment that no explanation has been given as to why Mrs Tilson's statement was made only on 16th May, notwithstanding the stage the extradition proceedings had reached and the contents of the statement which claimed that she had been forced to leave New Zealand because of threats uttered. In their letter the present solicitors requested an adjournment for at least two months. Mr Lee told the court this morning that an investigator had two weeks ago been instructed in New Zealand to investigate the alleged harassment of Mrs Tilson and alleged corruption of the police there. The investigation, he said, would take three months. An adjournment was requested on those grounds.

[23]Mr Lee accepted that the result of the investigation would not be relevant to the grounds argued unsuccessfully at the Magistrates' Court in relation to delay. It is submitted that they could assist the appellant to a claim now made under Article 8. If the appellant is returned to New Zealand his wife and family will not reasonably be able to join him because of the fear engendered by the harassment. Family life will thereby be disrupted, particularly in relation to the children.

[24]Having heard submissions, the court was not prepared to grant the adjournment sought. As I have said, knowing the stage reached in the extradition proceedings, it is very surprising that, if genuine, Mrs Tilson's statement was not made and made available very much sooner and was dated only 16th May, that is just before the present solicitors were instructed. The Article 8 claim now sought to be made is different from the one made, though in a different context, before the Magistrates' Court. That was based on an association the appellant had formed with another woman.

[25]Moreover, the most the investigation could establish, it not being relevant to delay, was to add force to Mrs Tilson's unwillingness to return to New Zealand. Further points have emerged in the course of the day in relation to that. One of them is that in paragraph 3 of her statement, Mrs Tilson says:

"Since the application for extradition of my husband [the officer concerned] has personally pursued my family and made my life unbearable in New Zealand."

Particulars are then given. There was no reference to that in the statement made by Mrs Tilson to the District Judge in October 2008. References were made to the officer, but not of the type now made in the May 2009 statement, as to the harassment of Mrs Tilson which made life in New Zealand unbearable. According to Mrs Tilson, the officer has said, "it is me and me alone and I'm going to get him [that is the appellant] I'll do whatever it takes..." That raises the further question whether if, what, according to Mrs Tilson, the officer is claiming to achieve, the appellant's return to New Zealand, there would appear to be no further cause for the harassment of his family there. That is to look to the future but very considerable doubt is placed on the value of any adjournment, for the reasons I have given.

[26]When considering an adjournment, the court must have in mind, of course, the interests of the appellant but also the more general interests of justice, including the timely operation of extradition procedures, particularly to a country with links to the United Kingdom as close as those the United Kingdom enjoys with New Zealand.

[27]I refer to Mr Lee's submission on the District Judge's approach to delay and the point on which he particularly relies. He also seeks to rely on a reference in the statement of Mr Liddell, which was before the District Judge, to M, and the attitude of the appellant to that child. Mr Lee submits that, while these omissions or errors were amongst a great deal of evidence, they could have had a ripple effect if they had been properly dealt with. They may have tipped the balance in the District Judge's mind against the Government of New Zealand. The investigation of the evidence demonstrated by an analysis of the judgment was insufficiently thorough. The judge should have dealt more carefully with the evidence in particular the statements which were before her and the apparent contradiction with the statement on which the judge relied in relation to the appellant's knowledge of proceedings against him.

[28]I am unpersuaded by those submissions. I refer to the quality of the District Judge's reasoning, as I have stated it to be. There was considerable evidence before her. The charges against the appellant are numerous and serious. There was in my judgment ample evidence on which the District Judge was entitled to conclude that the appellant left New Zealand because of his known dealings with Orchard and the proceedings to which that was likely to lead.

[29]Since the decision of the District Judge, the House of Lords has considered the relevance of delay in this context in Gomes v Government of Trinidad and Tobago, 29th April 2009. In his skeleton argument, Mr Hines has set out extracts from the speech of Lord Brown of Eaton-under-Heywood at paragraphs 26 and following. I do not propose to take time now in reading the whole of them. They appear to me to justify entirely the District Judge's approach to the evidence in this case. In relation to the finding at paragraph 27 that "flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay", Mr Lee makes the point to which I referred earlier that the delay or the passage of time was caused not by the absence of the appellant from New Zealand but the need to obtain further evidence. The judge carefully considered that aspect and came to the conclusion that there had been no dilatoriness in the approach of the New Zealand authorities and in my judgment she was entitled to reach that conclusion. Paragraph 29:

"In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat his extradition."

I refer to the earlier paragraphs:

"26 ... This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'. 27... Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under section 85(3) of the Act). But it will often be by no means clear whether the passage of time in requesting the accused's extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state's resources, practices and so forth) but also expensive and time consuming."

[30]As to Article 8, the case is put on this basis. The appellant has two children, aged nine and four. He has behaved well towards them. Clearly he wishes to maintain links with them. His family life will be disrupted by his extradition to New Zealand. Emphasis is placed upon the children and rightly so, because, whilst it appeared this morning, when the application was made, that it was the reconciliation with the wife which created a fresh claim, we are told in the course of the hearing that the relationship with the wife is platonic, that they have what Mr Lee described as an amicable separation. They live under the same roof but that is in the interests of the children. The appellant also seeks to rely on the relationship with his partner, about whom evidence was given to the District Judge. That relationship is continuing and the appellant seeks to rely on the fact that the lady has or is suspected of having breast cancer and also has an autistic son.

[31]We have been referred to section 104 of the 2003 Act. I am prepared to take account of fresh evidence in considering the Article 8 claim, though underlining that fresh evidence cannot routinely be reconsidered in circumstances such as the present. Mr Lee has referred to a recent decision of this court in Ruiz and others v Central Court of Criminal Proceedings No 5 of the National Court Madrid

[2007] EWHC 2983 (Admin)

, which relates to an issue raised in this case. I cite paragraph 3 of the headnote:

"In considering whether an interference with the extraditee's Article 8 rights was disproportionate, the court should not apply an exceptionality test but decide whether the interference with the extraditee's Article 8 rights which would result from this extradition was proportionate to the legitimate aim of honouring extradition treaties with other states, but, since great weight should be accorded to that aim in an extradition case, there would have to be striking and unusual facts to lead to the conclusion that an interference with the extraditee's Article 8 rights was disproportionate and that accordingly, even if the appellants were at risk of being held in incommunicado detention or subject to a prison dispersal policy, any interference with their Article 8 rights was proportionate to the aim of honouring extradition treaties."

[32]The allegations in this case against the appellant are serious allegations. There are many of them. They have already led to convictions of others in New Zealand. The appellant, though having made contact with his children over the years, has lived apart from them because of his failure to return to New Zealand for the years since 2006. He has a complicated life but he has two serious female relationships. Considering all the circumstances, I am quite unpersuaded that the United Kingdom would be in breach of its Convention duties in giving effect to the claim of the New Zealand government to extradite the appellant.

[33]For these reasons, I would dismiss this appeal. In my judgment, extradition is proportionate, having considered and balanced the factors involved.

MR JUSTICE CRANSTON: I agree.

LORD JUSTICE PILL: Are there any applications?

[36]MR HINES: No, my Lord.

[37]MR LEE: My Lord, I am publicly funded. I do not know if it is necessary for me to ask for a detailed assessment of costs, but if it is --

LORD JUSTICE PILL: You are legally aided?

[39]MR LEE: Yes.

LORD JUSTICE PILL: Yes. We make an order for an assessment by the authorities of your costs.

[41]MR LEE: I am grateful.