SUPREME COURT Review of Ministerial deportation order

Press, Volume CXIII, Issue 33219, 8 May 1973, Page 12

SUPREME COURT Review of Ministerial deportation order

The hearing of a judicial review of the decision of the Minister of Internal Affairs (Mr May) to deport Leonardo Pagliara, aged 27, an Italian hairdresser, after the completion of a prison sentence on a charge of selling LSD, began before Mr Justice Quilliam sitting in the administrative division of the Supreme Court yesterday.

Messrs G. R. Lascelles and G. E. Berry appear for Pagliara, and Mr D. L. Mathieson, of Wellington, for the Attor-ney-General who is sued on behalf of the Minister of Internal Affairs. The case is expected to finish today. Patrick Gerard O’Dea, secretary for Internal Affairs, whose evidence-in-chief was given by way of affidavit, said that on December 12, 1972, he sent a memorandum to the Minister that although no Court recommendation had been made for the deportation of Pagliara, it was witness’s view that the deportation was warranted on the ground that it was not conducive to the public good that Pagliara be permitted to remain in New Zealand. The Minister approved the recommendation and the Cabinet authorised the submission to the Executive Council. On January 17, 1973, the Governor - General-in-Council approved the deportation 1 order. ■ On February 9, 1973, Mr Lascelles made representations to the Minister in person. The order for deportation was signed by the Minister on February 14 and he later approved file expenditure of $691.30 for the cost of an economy air fare from Christchurch to Rome for Pagliara. On February 28, Mr Lascelles informed the department that legal proceedings were being issued in the Supreme Court and asked for an assurance of postponement of the deportation, Mr O’Dea said in his affidavit. To Mr Lascelles, Mr O’Dea said that the deportation order was initiated by the Department of Justice. Asked why the department tcrok no action until Pagliara was released from prison, Mr O’Dea said that it was not the de- 1 ment’s policy to inform a man partment’s policy to inform a man of his pending deporta- ' tion because of the effect it might have on his conduct in prison. Mr O’Dea said that he ' knew that Pagliara had received normal remission of part of his prison sentence for good behaviour but he did not know that he had received extra remission because he had been an exemplary prisoner. His department had not notified Pagliara or his counsel that his deportation was being considered and had not made available to them the contents of the police reports on the matter. Mr Lascelles: Dia your department consider the possibility of Pagliara being re-sen-tenced for this offence on his return to Italy? — No. It was considered that the matter to which the Minister had to direct his attention was whether or not it was not conducive to the public good that Pagliara remain in New Zealand. The public good is the sole issue for the determination of the matter. Mr Lascelles said that that day’s issue of “The Press” contained a report that Mr O’Dea’s department was being asked by the Attorney-Gen-eral (Dr Finlay) to make representations to the Italian authorities over his concern that Angelo La Mattina had been sentenced again after his deportation to Italy. La Mattina, who’served 10 years in a New Zealand prison on a charge of murder, and was then deported, has been sentenced to another 21 years imprisonment for the same crime by a court at Palermo, in Sicily. Asked if he had changed his policy in that matter or if he would tell the AttorneyGeneral that his view in that case was the same as in Pagliara’s case, Mr O’Dea replied that he would not like to make a comment on the alleged report of the newspaper. It was certainly not a matter of the department’s policy but one of the Government’s policy. “As I understand the situation. the department is being asked to make representations to the Italian authorities for some leniency to be extended and that is purely a newspaper report,” Mr O’Dea said. Mr Lascelles: You knew that in the present case there was a possibility that Pagliara would be resentenced on his return to Italy, as your knowledge of the file would confirm that?—No. The extent of my knowledge would be that I think that the Italian judicial authorities, initially, under their law, exercise a discretion as to whether further punishment would be imposed. If the newspapers are correct in what they have said, the Attorney-General said your department is about to be rudely disabused of that misconception?—That is a question of terms. I would not accept that interpretation. Mr O’Dea said that he had had no discussion with the Attomev-General about the La Mattina case, which had been decided under a previous Administration. ITALIAN REQUEST Did your department make no specific inquiries of the (Italian authorities here on this issue in Pagliara’s case?—l am afraid I can’t give a positive answer to that except to say I that the Italian Embassy did make a specific request for 'the judicial papers concerning

Pagliara and those papers were supplied on February 22. Would you agree that if Pagliara is to be resentenced on his return to Italy that it would be a matter of very grave concern to him?—l am sure it would be to him personally, but this would be commenting on the laws of another country which I feel I am not qualified to do. Mr O’Dea said that he had not come prepared or briefed to answer questions on the La Mattina case. Mr O’Dea agreed he knew that the Supreme Court had refused to make a deportation order, that the matter had been argued before that Court, and that the judge had heard both sides. He knew that the Court of Appeal had made no recommendation for deportation when reaching its decision. The existing law made tne question of deportation an executive decision, Mr O’Dea said. There had been some cases where the Court had recommended deportation but the Minister had subsequently decided against it. On the other hand there were many cases where the Court had not made a recommendation for deportation but the executive had exercised its discretion to deport. Mr O’Dea said he knew that Pagliara had only one previous conviction and that was for possession of a valium tablet. He could not say that he knew particularly that that conviction had been disregarded as a matter of significance on sentencing on the LSD charge. His department had made no inquiries about Pagliara’s employment record, said Mr O’Dea, but it had inquired about how long he had been in New Zealand and his family ties. Was Pagliara advised of his deportation before it was published in the newspapers? — I can’t answer that with any certainty, but I would think not. Has it been decided by the Cabinet that all alien offenders under the Narcotics Act will be deported? — I know of no such decision. Were you familiar with the statement that, as a general policy, the Cabinet felt that deportation should be dealt with by the Courts?—l don’t think that that was in fact the decision. I have been formally notified of the Cabinet decision with regard to that point. CABINET MINUTE Mr O’Dea then entered in evidence a Cabinet minute of January 16. The contents of the minute were suppressed by his Honour. Mr Lascelles said that before Pagliara’s solicitor discussed the deportation order with the Minister there were statements in the newspapers and on the radio that no reconsideration would be given to the matter. Asked if he was familiar with those statements, Mr O’Dea replied that he was not sure to which counsel was referring to but none of them were made by witness. To the best of his knowledge, Mr O’Dea said, the file did not disclose any representations. made by Pagliara or his solicitor on the question of his deportation before the Executive Council decision but many representations were made after that decision. A petition was forwarded to the Minister but he did not know how many signatures were on it. After Mr Mathieson entered in evidence the report made to the Minister on December 19, Mr Lascelles was granted leave to cross-examine Mr O’Dea on the report. Mr O’Dea said that he admitted quite frankly that the report was wrong when it stated that Pagliara had offended twice against the Narcotics Act. The first offence was against the Poisons Act. Witness agreed that offences against the Poisons Act were less serious than those against the Narcotics Act. This report from you gives no factors at all which might be favourable to Pagliara, does it?—l don’t know that that is absolutely true. We tried to show, I think, a rather unfortunate case of a young man being left in New Zealand when his parents from a highly religious and patriarchal family have returned to Italy, and the effect of their loss of influence. If. in fact, his parents were still here the recommendation might have been different. INDIVIDUAL’S RIGHTS The simple issue was that no man should be judged, even by a department, unheard, ’Mr Lascelles said: when making submissions. It involved the rights of an individual to have some say in what a Government did to him; to know when the Government was considering am issue prejudicial to him, what statements w r ere made against him and why. “Until Pagliara opened a newspaper and found he was to be deported he had not the slightest inkling that it was even being considered,” Mr Lascelles said. “No-one asked Pagliara if he wanted to make representations against the order, noone told him of the facts placed before the Minister or whether they were true or not; no-one considered the , principle that one should hear

both sides before making a decision — and the only one in that position was the judge in the Supreme Court and he declined to make a recommendation for deportation," said Mr Lascelles. It was strange that the deportation proceedings were not instituted earlier. They should have been considered while Pagliara was serving his sentence, as he had been held in custody awaiting the hearing of the case. Pagliara was discharged on February 19 and was not out of the prison gate before he was re-

arrested on a deportation order. Mr Lascelles submitted that the Minister had not, as he was bound to, acted fairly and in accordance with the principle of natural justice. It seemed very unfair that a person who was going to be deported with such grave consequences should not know about it or be able to say something in his defence. Opening his case late in the afternoon Mr Mathieson, dealing with the allegation of the failure to give Pagliara the right to be heard, submitted that a deportee had no right to be heard or to make representations to the Minister or the department before an order was made under the Aliens Act. Mr Mathieson quoted legal authorities in support of his argument.