7.39Some of the main concerns with New Zealand’s current extradition system relate to the difficulties that many countries have in meeting the evidential requirements, the time it takes for these countries to prepare extradition requests, and the delay and complexity involved in eligibility hearings. There has also been concern that some countries are discouraged from making extradition requests of New Zealand because of the perceived difficulties of the system. This potentially leaves people, who may be guilty of serious offences committed overseas, untried and here in New Zealand. This situation is damaging to New Zealand’s international reputation.
The judicial role is important because the assessment of whether a person should be surrendered has a significant impact on that person’s “liberty interests”, as it is sometimes termed. To put this another way, the extradition process puts into opposition a person’s liberty interests and international co-operation or comity. … Courts have had to face the difficulty of on the one hand recognising the significance of comity and acting in a way which properly respects the relevant Treaty with the requesting state, while at the same time applying the specific extradition law and general criminal law within their own jurisdiction in a manner consistent with the laws of that state. The overall problem lies in endeavouring to attain an appropriate balance between comity and liberty.
7.41The interest in comity leads to extradition proceedings that show respect for the criminal proceedings of the requesting state. This can be achieved, for instance, through an approach that removes or reduces the requested country’s inquiry into the case against the person by making the extradition hearing more akin to a preliminary hearing than a full trial or by relaxing admissibility of evidence standards for foreign evidence in extradition hearings.
7.43Countries that have made changes to their extradition law in recent decades have sought to alter the mechanisms that balance liberty and comity. Australia’s 1988 reforms promoted the interest of comity in the extradition hearing stage by reducing the court’s role in weighing the case against an individual. On the other hand, to ensure it was satisfied with the liberty protections in place in the countries to which it chooses to extradite, it relied on grounds for refusing surrender and the treaty negotiation, or country assessment, stage. Canada also sought to advance comity by making the extradition hearing more accessible to some extradition partners that had found the previous system difficult to work with. During the reform process, there was a sense that the pre-1999 law was not achieving the right balance between liberty and comity because the admissibility rules and sufficiency of evidence requirements were discouraging extradition requests.
7.48While it seems that different procedures and expectations in civil law and common law legal systems have led to traditionally contrasting approaches to extradition hearings, it may be more valuable now to consider whether the different aspects that have formed the basis of this conflict continue to have weight and should influence New Zealand’s extradition law.
7.50The growing emphasis on cooperation in extradition to combat international crime and improve the enforcement of justice transnationally is not in itself a reason for New Zealand to alter its approach to the evidence required for extradition. However, the benefits for New Zealand in being part of an international system that cooperates more closely in the prosecution of crime may lead to a desire for a reduction in the evidential hurdle to extradition in New Zealand.
7.51An implicit line of reasoning for maintaining a greater degree of judicial inquiry is that it provides protection against having to extradite to countries whose justice systems New Zealand may distrust. There is an argument that countries that have very different justice systems to New Zealand and different approaches to natural justice and human rights should have to provide a stronger case that the individual sought has committed the alleged crime.
7.52Applying the higher evidential standard to countries as the default position makes this a rather blunt instrument, however. There are clearly countries to which the prima facie case standard is applied that have strong and reliable records of human rights protection and trustworthy justice systems.
7.53It is also questionable whether the judicial inquiry into the facts of a case is the correct place to address these concerns. They may be addressed more directly and appropriately through categorisation of countries or consideration of the grounds for refusing surrender.
7.54In addition, the court’s inquiry into the case against the person based on evidence prepared in a requesting country, whether it meets domestic admissibility requirements or is in summary form, may well be inadequate to determine whether a prosecution is, in fact, unjust or spurious. The distance involved and the differences in processes and language may make it impossible to tell, in which case, little is added by having the greater degree of judicial inquiry.
7.55On the other hand, the very fact of there being a judicial inquiry into the evidence of the offending may deter spurious or unjust requests from being made in the first place. That is, a country may be less likely to present exaggerated or weak evidence directly to a foreign country in an extradition request than it would an arrest warrant for endorsement by the requested country that was based on such evidence. Furthermore, from a defence perspective, without any evidence requirement, it would be virtually impossible to prove that a request was being made in bad faith even if it was.
7.56In the past, the fact that extradition required the transfer of a person to a completely different country – possibly with a different legal system, culture, and language – has been influential in supporting the case for a greater degree of judicial inquiry into the offending. There is no question that extradition still results in a major disruption to a person’s life. However, any domestic criminal prosecution is disruptive, and perhaps this is not a reason for guarding particularly against extradition.
7.57Extradition proceedings in common law countries have traditionally been similar to preliminary committal proceedings in domestic criminal cases. This has provided a familiar process to which the courts can align extradition hearings. This approach makes sense, because both types of proceedings are not themselves the trial of the person for the alleged crime but are a check to determine whether there is a case to hear.
7.59As a practical effect of the change to domestic law, fewer and fewer judges and counsel will be familiar with the old domestic committal process. There is little sense in extradition law relying on standards based in domestic criminal law when those domestic standards have now moved on.
… seems to rest partly on the suspicion of inadequacy of proceedings under other systems of law, and partly upon the feeling that one who is within the State is entitled to the protection of the State’s system of criminal procedure, as well when he is accused of a crime abroad, as when he is accused of a crime within the requested State.