Chapter 7
Inquiry into the case against the person sought

Does New Zealand’s approach need reform?

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.

Balancing the interests of liberty and comity

7.40At the centre of any consideration of what courts ought to require in extradition cases is a tension between promoting international comity between countries for the purpose of combatting crime and protecting the liberty of the individual who is the subject of the request. As Hammond J observed in Bujak:257

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.

7.42In countries where the interest in protecting the liberty of the person has shaped extradition law, however, it has been emphasised that the courts do have a role in inquiring into the case against the person.258

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.

7.44In New Zealand, the balance between comity and liberty is currently achieved by treating an extradition hearing as comparable to preliminary proceedings used domestically to hold an accused over for trial. In the words of Hammond J, “the extradition hearing has not been treated as a trial on the merits because that approach would involve questioning the foreign state’s judicial system”.259 At the same time, the retention of the prima facie case standard for all but backed-warrant cases, as well as the court and Minister’s consideration of the grounds for refusing surrender, has kept the emphasis on the liberty interests involved.

Dealing with different approaches of civil law systemTop

7.45Civil law countries find New Zealand’s current requirements difficult. This is because New Zealand requires evidence in a form in which civil law countries are not accustomed and will be quite different to that which will be required for their own domestic trial.260 For instance, the central common law concept of an affidavit is completely foreign to civil law countries. The disjunction between the systems’ interaction can create considerable expense and delay in New Zealand as it seeks to help civil law countries to meet the requirements.261
7.46The traditional common law approach of assessing a prima facie case in the case presented by the requesting country has been seen as a sign that civil law systems are not to be trusted.262 However, the justification of the civil law no evidential inquiry approach to extradition is that extradition is a measure of international judicial assistance in restoring an alleged criminal to the jurisdiction with the best claim to try the person. Assisting the authorities of the requesting country does not involve or require entering upon questions that are the prerogative of that jurisdiction.263
7.47Australian academic Ivan Shearer has challenged some of the perceptions about the prima facie approach. He argues that the fact that the prima facie case was a requirement for extradition even among the British dominions shows that having a court inquiry to the prima facie standard reflects the serious disadvantages of extradition to the accused person when sent to a distant place to answer for an alleged crime rather than mistrust in the requesting country’s legal system. He also considers that the similarities in the extradition hearing process in common law countries to their domestic proceedings is more based on practical convenience than on any conscious desire to apply domestic law and procedure to extradition offences.264

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.

Desire for greater international cooperationTop

7.49There has been a shift internationally towards greater acceptance of the no evidential inquiry standard. This seems to have developed because of the desire for greater international cooperation to combat crime. As noted, several common law countries have adopted a no evidential inquiry approach or have lowered admissibility requirements in order to be able to cooperate in extradition with a greater number of countries. The United Nations Model Treaty on Extradition adopted the same no evidential inquiry approach as the European Convention on Extradition.265 A number of multilateral treaties designed to combat specific transnational crimes have also adopted the no evidential inquiry approach.266

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.

Measure of a country’s trust in another country’s justice system

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.

Disruption and inconvenience of extradition

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.

Similarity to domestic criminal proceedings

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.

7.58There has recently been a change to criminal procedure in New Zealand to remove the committal hearing for all criminal cases.267 A similar reform occurred in the United Kingdom in 2013.268 The reasoning behind the change in both countries was to make criminal procedure more efficient. It was considered that the committal process did not add any real value to the assessment of the case against the accused.

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.

257Bujak v District Court at Christchurch [2009] NZCA 257 at [19]–[20].
258For instance, United States of America v Ferras, above n 201, at [25], [34], and [46]−[49].
259‚ÄčBujak v District Court at Christchurch, above n 257.
260Proust, above n 203, at 303.
261This was also the situation in Australia prior to the 1988 changes; Joint Standing Committee on Treaties, above n 231, at [3.20].
262For instance, a committee appointed by Harvard Law School’s Research in International Law Programme drew up a draft convention on extradition law and practice in 1932, which left out the prima facie requirement stating that it (Harvard Research in International Law Codification of International Law: Part I – Extradition (1935) 29 AJIL Sup 15 at 194 as cited in Shearer, above n 206, at 160):
… 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.
263Shearer, above n 206, at 157.
264At 161.
265Model Treaty on Extradition GA Res 45/116, A-Res/45/116 (1990), art 2(2)(b).
266Many multilateral treaties do not include a requirement for an evidential inquiry, for example: International Convention against the Taking of Hostages 1316 UNTS 205 (opened for signature 17 December 1979, entered into force 3 June 1983) art 10; and International Convention for the Suppression of Financing Terrorism 2178 UNTS 197 (opened for signature 9 December 1999, entered into force 10 April 2002), art 11. Multilateral treaties that do mention the evidential inquiry require parties to endeavour to simplify these requirements, for example: United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1582 UNTS 95 (opened for signature 20 December 1988, entered into force 11 November 1990), art 6(7).
267See our discussion at [9.56].
268Criminal Justice Act 2003 (UK), sch 3 (which took effect in 2013).