Chapter 7
Inquiry into the case against the person sought


7.1What ought a requesting country have to show about the alleged offence and conduct of the person sought for extradition, and against what standard ought it be judged? This chapter compares the current approach taken in New Zealand to that taken by other countries. We discuss several significant issues that underlie future approaches that New Zealand could choose to take.

7.2We propose the following:

7.3The proposed reforms in this chapter are aimed at tailoring the appropriate level of scrutiny of the case against the person to the true nature of extradition proceedings and the relationship between New Zealand and requesting countries. The reduction in requirements proposed in this chapter must be balanced against other proposals in this part of this issues paper, which are designed to add robustness to the scrutiny of extradition requests in the standard procedure: the central authority’s vetting of the quality of requests;198 the court’s consideration of broader grounds for refusing surrender, which allow human rights and justice system issues to be examined;199 and the court’s ability to request further information from a requesting country regarding the case against the person, if this is needed.200

Admissibility and standard of evidence required

7.4The Canadian Supreme Court usefully described the distinction between the admissibility of evidence and the standard or sufficiency of evidence in United States of America v Ferras.201 The admissibility provisions were described by the Court as being “aimed at establishing threshold reliability”, while the standard of evidence determines whether the legal requirements for extradition are satisfied. Extradition legislation or treaties may allow summarised evidence or hearsay evidence and evidence that is not authenticated in the way normally required in domestic cases.202

Admissible evidence required

7.5Common law countries have traditionally conducted a court inquiry into the case against the person sought for extradition. In contrast, the typical approach in continental Europe, and in many civil law jurisdictions, has been not to conduct an inquiry into the alleged offending but to require only proof of identity and conformity of the request to the treaty and statutory requirements.

7.6Under the “no evidential inquiry” approach, the consideration of the court in the requested country is limited to assessment of the warrant, a summary of the alleged conduct, and the legal provisions relating to the requirements for an extradition offence.203 Such an approach is not completely unheard of in our legal tradition. A similar no evidential inquiry approach applied under the Fugitive Offenders Act 1881 (Imp) among British dominions that, by reason of their “contiguity or otherwise”, made such a scheme “expedient”.204 Several Commonwealth countries have retained such an approach for extradition between countries that are particularly close.205

Standard required

7.7Where a court inquiry is required, generally a “prima facie” standard applies. This requires that the evidence is such that a reasonably minded jury might convict on the evidence if not contradicted at trial.206 The court in the requested country must be satisfied that a case against the alleged fugitive criminal is made out to a sufficient standard as to allow the case to go to trial under the domestic criminal law of the requested country, had the case arisen there.207 The prima facie case approach was used by the United Kingdom and is still used by much of the Commonwealth.

7.8The process used for extradition hearings in countries that use the prima facie standard has essentially been the same as that used in a proceeding leading to committal of a person for trial for a domestic criminal offence. This approach usually requires the requesting country to produce a significant amount of evidence and makes the court’s consideration a longer process than occurs in countries where a lower test applies.

7.9Some countries have reduced the difficulty for a country requesting extradition by altering the way in which evidence might be presented. Rules about the admissibility of evidence can be altered from those that are normally required in domestic criminal matters.

198Discussed in ch 4.
199Discussed in ch 8.
200Discussed in ch 9.
201United States of America v Ferras 2006 SCC 33, [2006] 2 SCR 77 at [17]. See discussion of the New Zealand Court of Appeal in United States of America v Dotcom [2013] NZCA 38, [2013] 2 NZLR 139.
202These approaches are discussed in more detail in at [9.39]–[9.53].
203Kimberly Proust "International Co-operation: A Commonwealth Perspective" (2003) 16 SACJ 295.
204Fugitive Offenders Act 1881 (UK) 44 & 45 Vict c 69, pt II; Scott Baker, David Perry and Anand Doobay A Review of the United Kingdom's Extradition Arrangements (Home Office, 30 September 2011) at [3.37].
205The Extradition Act 1999 applies the backed-warrant procedure in pt 4.
206See Re Schtraks [1962] 2 All ER 176 at 155. The prima facie case standard appeared in the first extradition treaty between the United States and Great Britain in 1794: Treaty of Amity, Commerce, and Navigation between His Britannic Majesty and The United States of America 1 BFSP 784 (opened for signature 19 November 1794, entered into force 28 October 1795), art 27. From that time, until the late 20th century, every treaty of either the United States or Great Britain included the standard. The prima facie standard was also a part of the Fugitive Offenders Act 1881 (UK), which applied to British dominions (and later to countries of the British Commonwealth), although a lower standard of evidence applied to countries that were “contiguous possessions” of each other: see IA Shearer Extradition in International Law (Manchester University Press, Manchester, 1971) at 152−153; and Fugitive Offenders Act 1881 (UK) 44 & 45 Vict c 69, s 5, 12, and 14. By Order in Council 23 August 1883, Australia, New Zealand, and a number of Pacific Islands were declared to be contiguous for the purpose of this Act.
207Shearer, above n 206, at 150; and Proust, above n 203.