High Court Cases

High Court Christchurch A109/01; [2002] NZAR 531
11 December 2001; 11 December 2001
William Young J (oral judgment)

Article 31 - penalties - illegal entry to New Zealand - use of false passport - Article 31.

Offences - use of false passport - reasonable excuse - Passports Act 1992, s 31(1)(f)(i).

The appellant, apparently a citizen of Iran, arrived in New Zealand on 18 September 2001 travelling on a false French passport and claiming to be a refugee.  During processing at the airport the falsity of the passport was discovered and a prosecution instituted under s 31(1)(f)(i) of the Passports Act 1992.  The charge was that without reasonable excuse the appellant had possession of a French passport which had been falsified.  The appellant pleaded guilty and was sentenced to twelve months imprisonment.  He appealed against sentence.  By consent the appeal was treated as being an appeal against conviction.

Held:

1    If it was indeed the case that the appellant was a true refugee, then that might well constitute a reasonable excuse for the purpose of s 31(1)(f)(i) of the Passports Act 1992.  But the refugee application had yet to be processed.  It was clear enough that the plea of guilty was on the basis of a mistake and the appeal against conviction was allowed (see paras [9] & [10]).

Appeal against conviction allowed.  Rehearing in District Court directed.

Counsel
G A Hay for the appellant
S C Poore for the respondent

[Editorial note: In this brief decision there is no mention of Appiah v New Zealand Police (High Court Auckland, AP97/97, 10 June 1997, Elias J) or of R v Uxbridge Magistrates' Court; Ex part Adimi [2001] QB 667 (QBD) or of Article 31 of the Refugee Convention.]

WILLIAM YOUNG J [1] The appellant pleaded guilty in the District Court at Christchurch to a charge which, as laid, alleged that he had possession of a French passport which had been falsified; this contrary to s 31(1)(f), Passports Act 1992.

[2] The appellant appears to be an Iranian citizen of 21 years and a student.

[3] The facts giving rise to the charge are not entirely clear to me.  It appears that the appellant arrived in New Zealand on 18 September 2001.  He was a passenger on flight JL998 which was destined for Auckland.  It seems that the plane was diverted to Christchurch.

[4] The hypothesis on which I am dealing with this case (but about which I am far from certain given the exiguous summary of facts) is that the appellant endeavoured to go through immigration formalities in Christchurch.  Quite how far he got is not clear.  There is material on the file which suggests that he received a work permit.  But at some stage in the process it became apparent that his passport was false.  This passport was a French passport in the name of "Thibault Pierre Marie Lefebuure".  The photograph of the original holder of the passport had been removed and a photograph of the appellant had been replaced.

[5] The appellant's position is that he is a refugee from Iran.

[6] It seems clear enough that he picked the wrong time to be travelling from the Middle East to a Western country on a false passport.  I say this because his arrival in New Zealand was seven days after the attack on the World Trade Centre in New York.  There is a sense in which that coincidence of events has perhaps coloured the way in which he has been dealt with in relation to the current charge.

[7] As it turned out, the appellant pleaded guilty and was sentenced on 17 October to twelve months imprisonment.

[8] The position advanced to me on appeal, by both counsel, is that the information, as laid, does not accurately set out the elements of the offence in question.  That is correct.  Section 31(1)(f), Passports Act makes it an offence to have possession of a falsified passport providing this is without reasonable excuse.

[9] If it is, indeed, the case that the appellant is a true refugee, then that might well constitute a reasonable excuse.  This is his position.  His claim to refugee status has yet to be processed by the immigration authorities.

[10] In those circumstances, it would appear clear enough that the plea of guilty was on the basis of a mistake and one which can now be rectified.  So, with the agreement of counsel for the respondent, I treat the appeal as being an appeal against conviction and allow it and I direct a rehearing in the District Court.

[12] If it is, indeed, the case that he is found to be a true refugee then the probabilities are that the charge will be withdrawn.  In any event, his claim to refugee status may well result in a reasonable excuse defence being successful if the case proceeds to trial.

[13] The appeal is allowed accordingly, the conviction is quashed and a rehearing is directed.
 

Solicitors for the appellant: G A Hay (Christchurch)
Solicitors for the respondent: Crown Solicitor's Office (Christchurch)