Chapter 7
Inquiry into the case against the person sought

Proposals and options for reform

7.60Below, we present and assess the options for reform, under three key questions:

Should the court be required to inquire into the case against the individual?

7.61In relation to the first question, the options are:

7.62In reality, each may be employed in relation to different categories of countries under the legislation. In particular, as noted in Chapter 6, we anticipate that the backed-warrant (no evidential inquiry) approach should be retained for at least some countries, as this is an important part of how New Zealand’s extradition system operates with countries with which it is particularly close.

Option (a): Shift to a no evidential inquiry approach in the standard procedure

7.63One option is to take the Australian approach and require no evidential inquiry into the particular case against the person sought for all extraditions. This would be similar to an extension of the backed-warrant approach that already applies to extradition requests from Australia and the United Kingdom. This approach would imply that New Zealand has determined to exercise a high degree of trust with the countries with which it allows extradition.

7.64A shift to a no evidential inquiry approach would enable greater cooperation with countries with which New Zealand has not been able to have an extradition relationship or that have faced difficulties in meeting New Zealand’s evidential requirements. This would potentially allow more extradition to occur, which could be seen as enhancing the prosecution of crime internationally.

7.65There are concerns that such an approach would be going too far. The testing of the case against the person sought for extradition has been a key feature of New Zealand’s extradition law. It has ensured a certain degree of protection for the individuals involved and has provided a barrier that makes extradition less likely with countries with justice systems about which there are concerns. As noted, Australia’s approach is supported by it having negotiated and updated its treaty relationships with a wide segment of the countries to which it extradites. This provides it with an alternative way of being satisfied with a requesting country’s justice system.

7.66We do not support the broad extension of the no evidential inquiry approach. While we are in favour of its use for a narrow group of countries with which New Zealand has a close relationship (Category 1 countries), it should not be adopted across the board.

Option (b): Retaining a court inquiry for the standard procedure

7.67We are in favour of retaining the court inquiry for most countries because there is a strong argument that there should be some oversight from the New Zealand justice system in relation to the nature and strength of the case against a person. The responsibility that the New Zealand Government has for such a person arises from the fact that the person is within New Zealand’s jurisdiction. The Government should owe those within its borders a duty to take seriously any threats to their liberty. Where the request does not require consideration of the case against the person, because the requesting country has been designated as not requiring one, the New Zealand Government has effectively checked and approved that it is satisfied with the prosecutorial standards of that country at a general level and so does not need to do so in a specific request. Extradition is extreme in the impact it has on the liberty of an individual and the potential for hardship. Our view is that, because of the significant consequences of extradition, the New Zealand approach should be to exercise a degree of caution with regard to extradition requests from most countries.

7.68This approach would retain the present emphasis on protecting the liberty interests of the individual who is the subject of the request. This minimises the risk of extraditing a person to face a spurious or unjust charge because there will be a greater check undertaken by the New Zealand courts.

7.69Alongside improvements to procedure,269 and the proposals later in this chapter to reduce evidential requirements, we consider that, as a whole, our proposed scheme will achieve an appropriate balance between efficiency and cooperation with foreign countries on one hand and protection of the liberty interests and values of New Zealand’s justice system on the other.


Q14 Should the new Extradition Act retain an inquiry by the New Zealand courts into the evidence against the person sought for extradition for most countries?

If there is a court inquiry into the case, to what standard should the court be satisfied that a credible case exists?Top

7.70If the decision is made to retain a court inquiry into the case against the person sought for extradition for most countries, the legislation will need to set the standard to which the court needs to be satisfied that the extradition is justified.

7.71The question of the factors of which judges must be satisfied, and to what degree, is expressed differently in different contexts, such as issuing warrants for search or arrests, deciding bail applications, or adjudicating guilt. In our view, none of these completely or easily state what we think a judge should do when considering whether there is a sufficient case to justify extradition.

7.72The judge should be reasonably satisfied that the elements of the offence are made out and that there is sufficient evidence in relation to each element. There is a range of ways this judicial task could be expressed:

(a) Using the standard for committal for trial (the prima facie case).
(b) Adopting an “insufficient evidence to proceed” standard (the Criminal Procedure Act standard).
(c) Adopting the standard used for the issuing of arrest warrants.

Option (a): Retaining a prima facie case standard

7.73The Extradition Act currently provides that evidence is required that will “justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand”.270 This test was designed when domestic criminal procedure included a committal hearing. The concept of justifying a person’s trial if the offence had occurred in New Zealand made sense within this context. With the removal of the committal hearing, there is now no general stage in criminal proceedings when the question of whether there is sufficient evidence to justify trial is considered.

7.74The main problem with retaining this particular formulation is that it is old and not well understood. The standard comes with the baggage of many years of case law that is unlikely to be helpful in the extradition context. If the committal test is retained for extradition proceedings, consideration will need to be given to how it is spelt out in the statute. Further, a decision to retain a prima facie case approach could be seen as a missed opportunity to lower the threshold and reduce one of the key barriers to extradition in the way that Australia did when it shifted to legislation that focused primarily on a no evidential inquiry approach. A shift away from the prima facie case standard would be seen as a way of placing greater trust in the legal systems of other countries.

7.75Among the countries that retain a prima facie case standard, the form and wording of the test in legislation is fitted to the criminal system in which they operate. In the Canadian legislation, the wording used is that there must be evidence that the conduct would “justify committal for trial in Canada”.271 Canada retains the committal process as part of its domestic criminal procedure. In the United Kingdom (in the relatively rare cases that the prima facie test applies), there must be “evidence which would be sufficient to make a case requiring an answer by the [defendant] if the proceedings were the summary trial of an information against him”.272 The Australian test (which applies in relatively rare cases) has been formulated to achieve uniformity between states:273

[A] reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence.

7.76Retaining a form of a committal test would preserve a relatively high standard for the inquiry into the evidence. It would allow continuity with the existing law and would not be seen as an erosion of the standard at which New Zealand allows persons to be extradited to another country. The committal test has continued to operate successfully in Canada, where measures were taken to enhance Canada’s ability to cooperate in extradition with foreign countries through the form of evidence and admissibility standards instead.

Option (b): Aligning to the new domestic criminal law standard

7.77Section 147 of the Criminal Procedure Act 2011 provides for a different mechanism for filtering out cases that involve insufficient evidence to proceed to trial. The court may dismiss a charge if, in relation to a charge for which the trial procedure is the judge-alone procedure, the court is satisfied that there is no case to answer.274

7.78Importing this standard into extradition law would mean that the court could reject an application for extradition where, on the evidence presented, there is no case to answer. This test would have the advantage of alignment to a more familiar domestic criminal law standard, but it has the risk of bringing with it domestic criminal law concerns.

Option (c): Probable cause

7.79New Zealand’s extradition law could attempt to adopt a sufficiency of evidence standard that falls in between the prima facie case standard and the no evidential inquiry standard. This would require countries to provide evidence that goes some way towards establishing the case against the alleged criminal, but the burden would not be as significant.

7.80The United States’ “probable cause” standard equates generally to the standard of evidence required for an arrest warrant to be issued in the United States’ domestic criminal law. The extradition judge is asked to determine if there is sufficient evidence to support the reasonable conclusion that a person committed the offence. In addition, the evidence required to show this is not required to meet the general rules of evidence in the United States.275 An arrest warrant test also applies to extradition requests to the United Kingdom for some countries. This standard is known as the “reasonable suspicion” test as it requires sufficient evidence for a reasonable suspicion that the individual committed the offence.
7.81The 2011 Baker Report in the United Kingdom compared the United States’ probable cause test and the United Kingdom’s reasonable suspicion test. It concluded that there was no significant difference between the two. Both tests are based on reasonableness and equate to the domestic standard of proof that police officers in the United States and United Kingdom must satisfy in order to arrest a suspect.276
7.82This approach attempts to find the correct balance between liberty and comity by allowing the courts to test the case without requiring the submission of large amounts of admissible evidence. It would potentially allow cooperation in extradition with a larger group of countries than is possible under the current law. Bassiouni, a leading United States commentator, considers that the probable cause standard is akin to the prima facie standard as it requires evidence to justify trial and not merely suspicion that the individual has committed the crime.277 These are standards that the New Zealand courts are unlikely to be readily familiar with and may end up being interpreted similarly to the existing law. On the other hand, probable cause might have subtle but appealing focus on the correct judicial assessment of the credibility of the case.


Q15 Should the correct judicial inquiry be whether a judge is reasonably satisfied that there is sufficient evidence in relation to the offence to justify extradition?

What evidence should be put before the court to assist it in its inquiry?Top

7.83The options are to:

(a) continue to require the provision of actual evidence; or
(b) only require a requesting country to provide a summary of the evidence by way of a record of the case.

Option (a): Require actual evidence

7.84Requiring actual evidence may allow the New Zealand courts to closely scrutinise the process that has gone on in the requesting country. It may, therefore, be better able to determine whether something is amiss. This may be perceived as providing greater protection of the liberty interests of the individual who is the subject of the request.

7.85However, it is not possible for a foreign country to fully present the evidence that would be available during the trial within that country, so there is always a degree of summarising that must necessarily occur. If a requesting country has determined to base an extradition request on fake evidence, it is just as likely to be able to do this in the provision of actual evidence as it is through a record of the case. It is better to have more direct protections against dubious requests, or requests from a country about which there are human rights or justice system concerns, at other points in the scheme rather than attempting to address such concerns in the court’s inquiry into the case against the person.

Option (b): Extending and improving the record of the case procedure

7.86An option for reducing the difficulty for requesting countries where there is an inquiry into the case against the person sought for extradition is to expand and improve the record of the case procedure.278 The inclusion of the record of the case procedure in the Extradition Act was an attempt to reduce the evidential burden for foreign countries requesting extradition. So far, only two extradition requests have ever been made to New Zealand using the record of the case procedure.279 Given that the procedure is unique to extradition proceedings, courts and practitioners in New Zealand are relatively unfamiliar with it. This has led to confusion and litigation, including on the issue of whether the record must attach all of the underlying evidence (such as witness depositions and exhibits)280 or whether it only needs to attach documents that it is not feasible for the requesting country to summarise (such as photographs).281

7.87These issues are not insurmountable. The record of the case procedure, if given a wider application and amended to provide clarification, has the potential to significantly improve New Zealand’s extradition system by enabling more straightforward cooperation with foreign countries. It would provide a balance to other aspects of our proposed scheme under which we are proposing both broadening the grounds for refusal and retaining an inquiry into the evidence of the alleged offending for most countries. These concessions to liberty interests need to be balanced in some way, as New Zealand has international commitments to facilitate extradition. If this is not achieved, New Zealand risks becoming a comparatively difficult country to extradite from and, therefore, a safe haven for international criminals.

7.88A more relaxed approach to the admissibility rules, through greater reliance on the record of the case procedure, would give due recognition to the validity of criminal justice systems that differ significantly from New Zealand. It would indicate that New Zealand has faith in requesting countries to resolve evidential issues through their own processes. It would also align with the approach that has been taken in Canada.

7.89The Supreme Court of Canada’s decision in Ferras provides reassurance that the Canadian record of the case procedure can be used in a fair manner, and on appropriate occasions, the court itself might ask for more evidence.

7.90We propose that New Zealand’s record of the case procedure should be expanded so that it applies to all countries in our proposed Category 2.282 We also propose that the New Zealand provisions regarding the record of the case should be amended to more closely reflect the Canadian model. This would include the following features:


Q16 To what extent should requesting countries be able to provide a summary of evidence to satisfy the court regarding the case against the person sought for extradition?

269See discussion in ch 9.
270Extradition Act 1999, s 24(2)(d)(i).
271Extradition Act SC 1999 c 18, s 29(a).
272Extradition Act 2003 (UK), ss 84(1) and 86(1).
273Extradition Act 1988 (Cth), s 11(5)(b). Aughterson, above n 224, at 218.
274A second limb of the provision relates to jury trials. It provides that the court may dismiss a charge if, in relation to a charge to be tried or being tried by a jury, the judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant. We have not given further consideration to this formulation because extradition proceedings do not involve a jury.
275Proust, above n 203, at 304.
276Baker, Perry and Doobay, above n 204, at [7.42]−[7.44].
277Bassiouni, above n 245, at 880.
278See above at [7.13]–[7.14].
279Government of the United States of America v Jiang [2012] DCR 724; and Dotcom v United States of America, above n 211.
280Dotcom v United States of America, above n 211, at [41] to [45] per Elias CJ dissenting.
281​At [143] to [147] per McGrath J.
282See ch 6 for discussion of the proposed categorisation of countries in a new Act.