Chapter 7
Inquiry into the case against the person sought

Current New Zealand approaches

7.10New Zealand takes different approaches depending on which category a country falls into under the Act.

Standard procedure

7.11For countries that are subject to the standard procedure under Part 3 of the Act, the approach taken is the traditional common law approach of requiring a court inquiry into the case against the person. The court must be satisfied that:208
… 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 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.

Countries that can use the record of the case

7.12Four countries fall under Part 3 of the Act but are “exempted countries” under sections 17 and 25.209 Those countries are subject to a court inquiry into the case against the person, but they present a summary of the evidence against the person, referred to as the record of the case. The record of the case is accompanied by specific assurances from the requesting country about the underlying evidence. These assurances give the summary a presumption of reliability.
7.13The record of the case must be prepared by an investigating authority or prosecutor in the requesting country and “must contain a summary of the evidence acquired to support the request for the surrender of the person and other relevant documents, including photographs and copies of documents”.210 It can be admitted if it is accompanied by assurances to the effect that:
7.14Since its introduction in 1999, the record of the case process has seldom been used in New Zealand.211

Backed-warrant procedureTop

7.15For countries subject to the backed-warrant procedure under Part 4 of the Act (those being Australia and the United Kingdom), there is no requirement for the court to inquire into the case against the person. These requesting countries need only provide evidence of the arrest warrant, evidence that shows the offence meets the “extradition offence” test, and evidence of the identity of the person before the New Zealand courts can issue a surrender order. It is not the court’s role under the backed-warrant procedure to assess the case against the person.

208Extradition Act 1999, s 24(2)(d).
209Canada, the Czech Republic, Tonga, and the United States. See Extradition (Exempted Country: Canada) Order 1999; Extradition (Exempted Country: Czech Republic) Order 2003; Extradition (Exempted Country: Tonga) Order 1999; and Extradition (Exempted Country: United States of America) Order 1999.
210Extradition Act 1999, s 25(2).
211The only cases where it has been used have been Government of the United States of America v Jiang [2012] DCR 724; and Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355.