A High Court judge has reversed a decision to extradite an alleged people smuggler accused of organising a boat that sank resulting in the deaths of 350 people to Australia.
Iraq-born Maythem Radhi is sought by the Australian Government over the notorious SIEV X boat which sank in 2001 on its way from Indonesia to Australia.
His extradition from New Zealand was ordered in March but Justice Edwin Wylie today reversed the decision because he ruled the alleged offence committed did not constitute an extraditable crime.
Radhi, who was found living in South Auckland in 2011, was allegedly one of the key organisers of the boat later known as the SIEV (Suspected Illegal Entry Vessel) X.
The boat-load of 421 asylum seekers sank in international waters south of Indonesia on October 18, 2001, en route to Australia's Christmas Island.
Officials estimated 146 children, 142 women and 65 men drowned when the 19.5m fishing boat sank.
To be extradited to Australia to face trial, the Crown had to show there was a comparable offence in New Zealand law that Radhi had broken and that the offence was punishable by more than one year in prison.
At the time, the penalty for people smuggling was worded such that it had a maximum three month prison term, or $5000 fine for each person smuggled.
Radhi's defence has argued the ''multiplier'' aspect only applied to the fine part of the penalty and could not be used for the imprisonment part.
The Crown needed to convince Justice Wylie the multiplier can apply to imprisonment so the prison term can be multiplied and get over the one-year threshold for extradition.
Justice Wylie said there was no offence of attempting to traffic illegal immigrants and the multiplier clause only applied to a fine and not a prison sentence. As such Rahdi was not extraditable.
"If conduct constituting the alleged offence in relation to Australia, or equivalent conduct, had occurred within the jurisdiction of New Zealand, it would not have constituted an offence punishable under the law of New Zealand for which the maximum penalty was imprisonment for not less than 12 months," Justice Wylie said in his decision.
Radhi's lawyer Roger Chambers had argued the New Zealand law was not comparable as it was stated in terms of helping people "arrive" in New Zealand.
In the SIEV X no-one arrived or even entered extra-territorial waters, he said.
He pointed out that no illegal immigrants arrived in Australia, and that no aspect of the conduct attributed to Mr Radhi is alleged to have occurred within Australia.
The Crown called in extradition expert Christine Gordon SC, who argued the legislation at the time was focused on the intent of those involved and it did not matter that it occurred outside New Zealand.
Australian police alleged three men were responsible for organising the people smuggling operation - Khaleed Daoed, Abu Quassey and Maythem Radhi.
The ''non-citizens'', who were of Middle Eastern origin, travelled to Indonesia to make the journey between July and October 2001.
On October 18 2001, passengers were transferred to a beach in Sumatra where they were ferried by larger boats onto the SIEV X.
"The SIEV X was so overcrowded that 20 passengers refused to board it and after several hours into the journey, 23 passengers who were concerned about the vessel's safety, negotiated with a fishing boat to take them back to Indonesia,'' the Crown alleged.
Most of the passengers drowned but about 45 were rescued by fishing vessels and returned to Indonesia.The remaining passengers and crew struck rough weather on October 19 and sank.
Australian police alleged that Radhi was present during negotiations about price and terms of travel and that he received payments from some passengers, controlled their movements and accommodation, accompanied some of them to Sumatra and assisted some to board the SIEV X.
Justice Wylie reversed the earlier decision, set aside Rahdi's detention order and he was discharged.
- © Fairfax NZ News