United States of America v Cullinane
CA 417/01
Court of Appeal Wellington
[2003] 2 NZLR 1; 2002 NZLR LEXIS 155
18 July, 18 December 2002
DECIDED-DATE: 18 December 2002
CATCHWORDS:
[*1]
Criminal practice and procedure - Extradition - Whether in extradition
appeal Civil or Criminal Court of Appeal Rules apply - Extradition Act
1999, ss 8 and 69 - Court of Appeal (Civil) Rules 1997 (SR 1997/180),
R 11 - Summary Proceedings Act 1957, ss 3 and 144.
Criminal practice and procedure - Extradition - Whether appeal to be
struck out for failure to pay security for costs - Whether security
for costs required for extradition appeals - Court of Appeal (Civil)
Rules 1997 (SR 1997/180), R 3 - Court of Appeal (Criminal) Rules 2001
(SR 2001/371), R 4.
International law - Extradition - Test to be applied when considering
extradition request made by United States of America - Whether
surrender in accordance with extradition treaty between New Zealand
and United States of America - Double criminality requirements -
Whether visa fraud and racketeering extraditable offences.
HEADNOTES:
The United States of America sought the extradition of Cullinane to
face charges of visa fraud, racketeering, alien smuggling and
harbouring. The charges related to Cullinane's 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, [*2] contrary
to United States immigration laws. In the District Court it was held
that Cullinane was eligible for surrender in relation to the
racketeering charge and visa fraud charges but not on the alien
smuggling and harbouring charges. The Judge held that visa fraud was
covered by cl 20 and racketeering by cls 16 and 20 of art II of the
Treaty on Extradition between New Zealand and the United States 1970
(the United States/New Zealand treaty). Cullinane appealed by way of
case stated to the High Court.
The High Court held that Cullinane was not eligible for surrender on
either the racketeering or visa fraud charges. In determining
Cullinane's eligibility for surrender both the District and High Court
used a three-stage test set out in the Extradition Act 1999. The
United States was granted leave to appeal from the High Court decision
to the Court of Appeal on condition that it meet Cullinane's costs.
Cullinane applied to strike out the appeal on the grounds that no
steps had been taken by the United States to give security for costs
and thus the appeal was deemed to have been abandoned.
Held:
1 The Court of Appeal (Civil) Rules 1997 (SR 1997/180) applied to all
proceedings except [*3] appeals under Part XIII of the Crimes Act
1961. An appeal under the Extradition Act was an appeal pursuant to s
144 of the Summary Proceedings Act 1957. Part XIII of the Crimes Act
was not incor****ated in the Summary Proceedings Act. Therefore even
though this was an appeal in respect of a criminal matter the appeal
came within the 1997 Civil Rules (see paras [10], [11], [12]).
2 It was not appropriate to strike out the appeal. A condition in
granting leave to appeal had been that the United States reimburse
Cullinane's costs. The failure to provide security had therefore not
prejudiced Cullinane (see para [20]).
3 The definition of ''extradition offence'' in s 4 of the Extradition
Act was ''subject to an extradition treaty''. Furthermore, s 11
required that the Extradition Act as a whole be construed so as to
give effect to an applicable treaty. It was therefore not appropriate
to add the United States/New Zealand treaty definition to the s 4
definition. The test in art II of the United States/New Zealand treaty
replaced the test set out in s 4. The proper inquiry for a Court faced
with an extradition request made by the United States was whether the
alleged conduct satisfied the [*4] requirements of the United States/
New Zealand treaty, and the Court should no longer concern itself with
the three-stage test. The focus was whether the totality of the acts
or omissions alleged to have been committed came within the
description of the offence in art II, remembering that extradition
treaties ought to receive a liberal interpretation (see paras [35],
[49], [53], [55], [66], [67]).
Yuen Kwok-Fung v Hong Kong Special Administrative Region of the
People's Republic of China [2001] 3 NZLR 463 (CA) applied.
Edwards v United States of America [2002] 3 NZLR 222 (CA) applied.
Factor v Laubenheimer 290 US 276; 78 L Ed 315 (1933) adopted.
4 If the offence for which the United States sought extradition fell
under art II, the definition of ''extradition offence'' in s 4 of the
Extradition Act was satisfied. Visa fraud was not covered by cl 20 and
racketeering was not covered by cls 16 and 20 of art II of the treaty.
The surrender was therefore not in accordance with the United States/
New Zealand treaty (see paras [63], [77], [85], [89], [90]).
Riley v Commonwealth of Australia (1985) 159 CLR 1; 62 ALR 497 [*5]
adopted.
Observations:
(i) The 1997 Civil Rules and the Court of Appeal (Criminal) Rules 2001
(SR 2001/371) are inconsistent. The 2001 Criminal Rules do not require
security for costs. It is unclear whether the 2001 Criminal Rules
apply to extradition appeals (and presumably all other appeals to
which s 144 of the Summary Proceedings Act 1957 applies) (see paras
[18], [19]).
(ii) There are two basic approaches by which states have in
extradition treaties identified the type of conduct which makes a
person eligible for extradition, the enumerative and eliminative
approaches. Treaties based on the enumerative approach list offences
for which extradition is permitted. Such treaties can also give effect
to the principle of double criminality and sometimes require a
threshold level of punishment. 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. Section 4 of the Extradition Act embraces the
eliminative approach. The United States/New Zealand treaty employs the
enumerative approach and does not contain an explicit double
criminality requirement (see paras [*6] [50], [52], [56]).
Factor v Laubenheimer 290 US 276; 78 L Ed 315 (1933) adopted.
(iii) Section 24(2)(d) of the Extradition Act addresses questions of
evidence and criminal procedure and does not im****t a double
criminality requirement.
Factor v Laubenheimer 290 US 276; 78 L Ed 315 (1933) adopted.
Riley v Commonwealth of Australia (1985) 159 CLR 1; 62 ALR 497
adopted.
Appeal dismissed.
CASES-REF-TO:
Other cases mentioned in judgment
Arton (No 2), Re [1896] 1 QB 509.
Edwards v United States of America (Court of Appeal, CA 6/02, 22
August 2002).
Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257
(CA).
Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 (CA).
Mewes v Attorney-General [1979] 1 NZLR 648.
R v Governor of Ashford Remand Centre, ex p Postlethwaite [1988] AC
924; [1987] 2 All ER 985.
R v Governor of Brixton Prison, ex p Minervini [1959] 1 QB 155; [1958]
3 All ER 318.
R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556; [2002] 1
All ER 545.
Tapp v Chief Executive of the Department [*7] of Work and Income
(Court of Appeal, CA 206/02, 2 December 2002).
INTRODUCTION:
Appeal
This was an appeal by way of case stated by the United States from the
judgment of Priestley J (High Court, Hamilton, A 116/00, 10 September
2001) on three questions of law:
(i) Is the offence of visa fraud covered by cl 20 of art II of the
Treaty on Extradition between New Zealand and the United States of
America?
(ii) Is racketeering covered by cls 16 and 20 of art II of the
Treaty on Extradition between New Zealand and the United States of
America?
(iii) 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?
COUNSEL:
M J Ruffin and M A Soper for the United States.
P J Morgan for Cullinane.
JUDGMENT-READ: Cur adv vult
The judgment of the Court was delivered by
JUDGES: Anderson, Glazebrook and Williams JJ
JUDGMENT BY: GLAZEBROOK J.
JUDGMENTS: [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 [*8] to work there as long-
distance truck drivers, contrary to United States immigration laws.
[2] Judge Harding on 26 October 2000 (District Court, Hamilton)
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 art II of the Treaty on Extradition between New
Zealand and the United States 1970 (the United States/New Zealand
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 s 68 of the Extradition Act 1999. By judgment dated
10 September 2001 (High Court, Hamilton, A 116/00), Priestley J held
that Judge Harding 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 Judge Harding was in error when he held
that Mr Cullinane's surrender was in accordance with the provisions of
the United States/New Zealand treaty.
[4] On 26 October 2001 Morris J granted leave to the United States
Government [*9] 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 (High Court, Hamilton, A
116/00). The appeal was to be on the following three questions of law:
(1) Is the offence of visa fraud covered by cl 20 of art 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 art 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 [*10] on 26
October 2001. The United States Government conceded that, if the Court
of Appeal (Civil) Rules 1997 (SR 1997/180) (the 1997 Civil Rules)
apply and s 18 of the Crown Proceedings Act 1950 does not, then
security for costs was required within 14 days of Morris J's decision
as R 7(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 s 18 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 (SR 2001/371) (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 [*11] 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 R 11 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 s 18 of the Crown Proceedings Act 1950
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 [*12] 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 (SR 1997/168) (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 s
51C 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,
R 3 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 incor****ates various
specified sections of the Summary Proceedings Act 1957, including s
144. An appeal [*13] 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 s 144 of the 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 incor****ated. 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 [1991] 1
NZLR 439 and Edwards v United States of America (Court of Appeal, CA
6/02, 22 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 [*14] of this
Court in Fleetwing Farms Ltd v Marlborough District Council [1997] 3
NZLR 257 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 (the 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 s
144 of the Summary Proceedings Act (see s 308 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 R
34(2) of the Court of Appeal Rules 1955 (SR 1955/30) (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 R 11 and
was in all presently material respects [*15] identical to R 11. In
the interlocutory Fleetwing judgment this Court held that security for
costs was not required because R 34 did not apply to appeals under s
144. At pp 2 - 3 Barker J for the Court reasoned that s 144
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 do***entation 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 im****ting 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, R 11 does not
[*16] 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 R 11, 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 Chief Executive of the
Department of Work and Income (Court of Appeal, CA 206/02, 2 December
2002) held that a notice of appeal must be filed for appeals governed
by s 144 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
14 days after the appeal has been brought. Under R 7(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 [*17] 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 R 4(1)(e) of the 2001
Criminal Rules are inconsistent in that R 3 states that the 1997 Civil
Rules apply to all proceedings in this Court, except those under Part
XIII of the Crimes Act, while R 4(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 s 51C 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 s 51C of the Judicature Act 1908 but were made on 3 December
2001. On the assumption that both instruments were made intra vires s
51C, the argument is that R 4(1)(e) of the 2001 Criminal Rules must be
taken to have impliedly repealed R 3 [*18] of the 1997 Civil Rules,
given that R 4(1)(e) was both enacted after R 3 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 s 144 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. [*19]
[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 art II of the the United States/New Zealand
treaty.
Background facts
[23] Judge Harding 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 [*20] 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 sightseeing 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 1c
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 [*21]
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 [*22] in the United States. 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 United
States 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 [*23] 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 ****elded from detection, or attempted to
conceal, harbour, and ****eld 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 ****elding 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
[*24] 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 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 [*25] 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). [*26]
[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 Singa****e, 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 s 4 of the Extradition Act is
made subject to the United States/New Zealand treaty, a three-part
test results. It has [*27] 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 United States/New
Zealand treaty (arts 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 (s 4(1)(a) of the Extradition Act); and
(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 (s 4(2) of the Extradition Act).
[36] Judge Harding held that the alien smuggling and harbouring
charges did not come within art II of the United States/New Zealand
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 art
II. This finding was not appealed.
[37] In relation to [*28] the visa fraud charges Judge Harding held
that those charges came within cl 20 of art 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 Judge Harding 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, [*29] 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 Judge Harding
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 Judge Harding 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 art 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 [*30] 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 [*31] that the
racketeering charges amounted to).
[43] We summarise briefly below the conclusions reached by Judge
Harding on the other aspects of the case. With respect to the third
limb of the three-part test set out in para [35] above, Judge Harding
concluded that the visa fraud and racketeering charges fell within ss
229A 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 [*32] of the United States/New Zealand
treaty (see s 24(3)(b) of the Extradition Act).
[45] Finally, the Judge held that there were no relevant
discretionary restrictions on surrender under s 8 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 s 142 of
New Zealand's Immigration Act 1987, but inclined to the view that Mr
Cullinane's conduct does not fall under s 229A or s 250 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. [*33] Mr Cullinane also
accepts that the visa fraud charges would be offences under New
Zealand law (namely under s 229A of the Crimes Act 1961) carrying a
maximum penalty of 12 months' imprisonment 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 United States/New Zealand
treaty that conduct for which extradition is sought falls within under
art II is engrafted onto the definition of ''extradition offence''
under s 4 of the Extradition Act. We do not consider that the
resulting three-stage test is applicable [*34] 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 M Cherif Bassiouni,
International Extradition: United States Law and Practice (3rd ed,
1996), p 396 and I A Shearer, Extradition in International Law (1971),
pp 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. [*35]
[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 s 4 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 s 4 is ''subject to an extradition
treaty''. Furthermore, s 11 requires that the Extradition Act as a
whole be construed so as to give effect to an applicable extradition
treaty. While s 11 states that such a treaty cannot override certain
core provisions of the Act, these core provisions [*36] are not
relevant in the present case.
[54] Section 3(4) of the now repealed Extradition Act 1965 was
materially identical to the current s 11. In Mewes v Attorney-General
[1979] 1 NZLR 648 at pp 665 - 666 the High Court read down s 3(4), but
this approach was rejected in relation to the current s 11 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 s 11 requires that the Act be construed to give effect to an
applicable extradition treaty we do not consider it appropriate just
to add the United States/New Zealand treaty definition to the s 4
definition. We consider that the test in art II of the United States/
New Zealand treaty replaces the test set out in s 4, instead of merely
being added to it (especially given the added ''subject to''
qualification in s 4 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 United
States/New Zealand treaty, and the Court should no longer concern
itself with the three-stage test that has been utilised to date in
this [*37] case.
[56] The United States/New Zealand 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 art II committed within
the territory of the other. Article II provides a list of offences.
Article IV provides that:
IV. 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, art XVIII provides that:
XVIII. 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 [*38] 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 , p 135), suggests that the parties deliberately
rejected the eliminative approach with its usual express double
criminality requirement. Indeed, Bassiouni at p 397 notes that the
United States has found the eliminative approach impractical.
[59] In Factor v Laubenheimer 290 US 276 (1933) 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 pp 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 cl***** 4 and 10 and the unnumbered class in art I), no
double criminality requirement existed in relation to the other
cl***** of offence. The Court held that it was open to the contracting
parties to a treaty to provide for extradition in [*39] relation to
conduct which is not criminal in the country from which extradition is
sought. It also stated at p 287 that a double criminality requirement
could not be im****ted from customary international law. Finally, at pp
290 - 292, the Court held that language in art X of the 1842 treaty,
materially identical to that of art IV of the United States/New
Zealand treaty and s 24(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 pp 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 art X in relation to similar language in s 17(6)(b)
(i) of the Extradition (Foreign States) Act 1966 (Cth) and art VI of
the Treaty on Extradition between Australia and the United States of
America of 1974. Their Honours, approving Factor v Laubenheimer , also
noted at p 12 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 [*40] in the requesting state. We
note that Brennan J agreed with the majority at p 14 and Deane J
agreed but said at pp 16 - 17 that there is a strong presumption that
double criminality is required even in ambiguous treaties.
[61] Like art I of the supplementary convention referred to in Factor
v Laubenheimer , art II of the United States/New Zealand 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:
7. Unlawful ***ual acts with or upon children under the age specified
by the laws of both the requesting and requested parties . (Emphasis
added.)
[62] In addition art XVIII expressly requires double criminality
where the United States/New Zealand 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 United States/New
Zealand treaty. All these factors strongly suggest that an [*41]
explicit double criminality inquiry is not required by the United
States/New Zealand treaty in relation to the offences listed in art II
unless expressly provided for in art II (as in cl 7) or art XVIII in
respect of offences committed before the United States/New Zealand
treaty came into force.
[63] Since the definition of ''extradition offence'' in s 4 of the
Extradition Act is subject to the United States/New Zealand treaty, it
follows that the double criminality requirement in s 4(1)(a) is
excluded when the United States/New Zealand 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 art II, the definition of ''extradition
offence'' in s 4 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 s 4 applies in relation to the United States/New
Zealand treaty.
[64] It is [*42] of course unlikely that any conduct falling within
art 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 in
International Law , p 138 and Factor v Laubenheimer at pp 299 - 300.
The main consequence of our conclusion therefore is a considerable
simplification of the inquiry required by s 4 in cases such as the
present.
[65] Before proceeding, we consider that it is appropriate to clarify
the meaning of s 24(2)(d) of the Extradition Act, which, by virtue of
s 11(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 [*43] 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 s 24(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 im****t a double criminality requirement. It is most unlikely
that Parliament intended s 24(2)(d) to function as a double
criminality requirement which extradition treaties cannot override.
The fact that the double criminality requirement in s 4 can be
overridden by extradition treaties and the interpretation given to
language very similar to that of s 24(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 art II. This Court
in Edwards v United States of America set out the approach that should
be adopted. The statement of Lord Russell of Killowen in Re Arton (No
2) [1896] 1 QB 509 at p 517 that extradition treaties ought to receive
[*44] 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 p Postlethwaite [1988] AC 924 at
p 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 Governor of
Brixton Prison [2002] 1 AC 556 at pp 574, 581, 593, and 597. The Court
in Edwards at para [27] stated that there is no reason why the general
rule of interpretation of treaties now stated in art 31(1) of the
Vienna Convention on the Law of Treaties should not be applied to
extradition treaties. Article 31(1) provides as follows:
(1) . . . 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 United States Supreme Court decision in
Factor v Laubenheimer 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 [*45] 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 art II, interpreting the words in art 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) both
parties are agreed that this is not a bar to his extradition. We are
inclined to agree. Article I of the United States/New Zealand 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 [*46] of the requesting state, but since s 11
requires the Act to be construed in accordance with the treaty and
since s 4(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 art II.
[69] In R (Al-Fawwaz) 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 p 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 art II of the United States/New
Zealand treaty, despite the reference to territory in art I, indicates
that Lord Parker's approach is applicable (see also R (Al-Fawwaz) at p
595 per Lord Millett and at p 605 per Lord Rodger).
[70] We now proceed to answer the questions in the case stated. We
examine the particular [*47] offences with which Mr Cullinane is
charged and whether they come within art II. Of the clauses in art 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. Judge
Harding's conclusions in relation to the alien harbouring and
smuggling charges are not under appeal.
Is visa fraud covered by cl 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 art II. We note again that Judge
Harding's conclusion that visa fraud was not covered by cl 16 of art
II was challenged neither before Priestley J nor this Court.
[72] The United States Government submits that cl 20 of art 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. [*48] 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 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 [*49] 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 art II were in fact
largely adopted from the list of offences contained in the Extradition
Treaty between the United Kingdom of Great Britain [*50] 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] F W Cecil Turner, Russell on Crime (12th ed, 1964), pp 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 relation****p 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, s 219 of Michigan's Penal Code, s 67 of
Massachusetts' Penal Code and the now repealed ss 53 - 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 art II, cl 20 and its predecessors. The fact that cl 20 does
not define the conduct to which [*51] it relates in as much detail as
does, for example, s 250 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 relation****p 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 [*52] from the crime. We therefore
answer the first question in the negative.
Is racketeering covered by cls 16 and 20 of art II?
Submissions of the parties
[78] The United States Government argues that racketeering is covered
by art 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 incor****ated 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 1c 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 [*53] 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
art 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 art II, racketeering comes
within art 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 partner****p, then there could be no argument that
cl 20 applied. It would therefore be against the words of cl 20 and
[*54] 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 art II offences
does not appear to accord with the policy underlying art 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 art 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 art 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
Commonwealth of Australia at pp 7 - 8 appeared to [*55] reason along
similar lines. We note for completeness, however, that there is no
equivalent in either the Extradition Act or the United States/New
Zealand treaty of s 4(1A) of the Australian legislation (Extradition
(Foreign States) Act 1966). That provision reads as follows:
(1A) 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 (at p 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 [*56] 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:
16. Obtaining property, money or valuable [*57] 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 (that is, 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 op****tunity 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 [*58] 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 do***ents
issued by the United States Government rather than merely stamps put
in the drivers' pass****ts, it could be argued that Mr Cullinane was a
party to the drivers obtaining property (the visa do***ents) 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 United States 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 [*59] as to the exact nature
of the visas. Nor was the argument for the United States 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. Judge Hardings finding that
alien smuggling and harbouring do not come within art II has not been
appealed. Allowing extradition for racketeering in such cir***stances
could be a backdoor means of achieving extradition for offences that,
charged separately, would not allow extradition.
[90] In our view art II must be interpreted in the light of the
speciality principle in art XVIII. The need to prevent extradited
persons from being tried for crimes which are not listed in art II -
and for which they cannot therefore be extradited - justifies a
restrictive and cautious approach to umbrella crimes like
racketeering. In addition, art II was intended exhaustively to specify
extraditable offences and it should not be possible for extradition to
[*60] occur for offences not included in art 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 s 38 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 s 18 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 United States/New Zealand treaty, it may be open to the
United States Government to make an individual request for extradition
under s 60(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 cir***stances of this
case:
(a) The offence [*61] of visa fraud is not covered by cl 20 of art
II of the Treaty on Extradition between New Zealand and the United
States of America.
(b) The offence of racketeering is not covered by cl 20 of art 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 art II.
(c) 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 s 64(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.
ORDER:
Appeal dismissed.
SOLICITORS:
Solicitors for the United States: Crown Law Office (Wellington).
Solicitors for Cullinane: A J Nolan (Hamilton).
Re****ted by: James Rapley, Barrister
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