Magistrate orders John Kirk to be extradited

Press, 9 August 1985, Page 3

Magistrate orders John Kirk to be extradited

By

HUGH NEVILL,

NZPA staff correspondent Dallas A United States magistrate, Mr John Tolle, yesterday ordered the former Sydenham member of Parliament, Mr John Kirk, extradited to New Zealand to face charges under the Insolvency Act. Mr Kirk, brought to the small Dallas, Texas, courtroom in handcuffs, and wearing white canvas overalls with a faded Dallas County Jail label on the back, looked pale after seven weeks in prison. He did not speak at the hearing, but took notes on a yellow legal pad, and turned frequently to smile at New Zealand friends in the courtroom. He was able to speak to his wife, Yvonne, looking trim in a grey suit, for a few seconds on his way out of the courtroom back to the nearby jail. She had earlier given his lawyer cigarettes and matches for her husband. The lawyer, Mr Michael Gibson, told the Court he would file a writ of habeas corpus within 48 hours. A writ of habeas corpus — charging that the magistrate made an error in law — is the only avenue of appeal in extradition cases. ’ Pinal approval of extradition must be given by the Secretary of State, who signs a surrender warrant. Mr Gibson said after yesterday’s hearing that he would base the writ on the issue of “dual criminality.” One section of the extradition treaty says that the alleged crime for which someone is facing extradition must also be a crime in the other country. Justice Department lawyers argued yesterday that this section did not apply in Mr Kirk’s case

because the crimes he is accused of committing are named in the treaty as specific causes for extradition. They also argued that the section applied to “quantum of proof,” which had been fulfilled by depositions and other documents filed with the Court. The writ will be filed with the clerk of the Magistrates Court, and will then be reviewed either by the Magistrate himself or another magistrate. If the petition is rejected, Mr Gibson has the right to take it to the Circuit Court. In theory, if it is rejected there too the petition could go all the way to the Supreme Court, but a Justice Department lawyer, Mr Thomas Snow, said after the hearing that it would be highly unlikely for such a petition to go that far. He said he was unaware of the Secretary of State’s having refused any extradition ordered by a magistrate. Mr Gibson said after the hearing, “I feel fairly confident of our legal position ... but whether that will prevail is another question.” He contended during the hearing that the request for extradition was politically motivated, and submitted a folder of newspaper clippings, most from New Zealand, to indicate the “political atmosphere” surrounding the case. Mr Snow, who travelled from Washington to join the local American Assistant Attorney, Mr Bill Alexander, in prosecuting the case, countered that American law and jurisprudence showed clearly that political offences “are only those that are incidental to severe disturbances such as war, revolution or rebellion.”

“By no stretch of the imagination couid these crimes against the bankruptcy laws of New Zealand be considered political offences.” A decision on whether the request for extradition was politically motivated was properly one for the Secretary of State to make, Mr ' Snow said. “If the claim, as I understand it, is that this request has been made for political purposes or to get back Mr Kirk to try him for other politically related offences in New Zealand... there is a built-in safety mechanism in the treaty itself which would prevent that.” That* mechanism, Mr Snow said, was an article known in international law as the principle of speciality, which said that someone could be prosecuted only for those crimes for which the extradition had been ordered “unless certain other circumstances take place.” Mr Kirk and his wife made one trip from New Zealand on May 31 last year, then left on July 7 — a week before the General Election — to settle in Costa Mesa, a suburb of Los Angeles. The Kirks moved from Costa Mesa to Dallas about New Year. Three warrants issued in New’ Zealand allege that Mr Kirk, aged 38, broke the law bv concealing krugerands and taking thousands of dollars worth of cash and traveller’s cheques out of New Zealand while an undischarged bankrupt. He was charged with “concealing" 32 krugerands ($NZ19,775) and removing $5BOO in cash and SUS672O in cash and traveller’s cheques within two years of presentation of a bankruptcy petition against him.