Chapter 9
Procedure
Appeal
Current law
9.61Once there has been a substantive extradition hearing in the District Court and a decision as to whether or not the person sought is eligible for surrender, either party may appeal that decision. The appeal is to the High Court, and it may only be made on a question of law.
9.62Despite there being provision for only one appeal, limited to questions of law, in the Extradition Act, in practice, extradition proceedings are subject to a great many appeals. There are two reasons for this:
- Extradition proceedings involve a series of preliminary decisions being made prior to the substantive hearing. Some of these decisions trigger appeal or review processes in other Acts. For instance, a decision to arrest a person sought may be challenged by making a habeas corpus application, and a decision to grant or refuse that person bail may be appealed under the Bail Act. For other preliminary decisions (such as the ministerial decision to initiate proceedings and court decisions on disclosure and admissibility), there is no statutory right of appeal, but judicial review is available.
- The complex interrelationship between the Act and New Zealand’s bilateral extradition treaties creates ample grounds for appeal.
9.63It has thus become common for one extradition request to generate a series of interrelated but separate appeals and reviews to the High Court. The High Court decisions are then inevitably appealed to the Court of Appeal and may also be considered by the Supreme Court. By way of example, one recent extradition request to New Zealand was the subject of an appeal and two judicial reviews in the High Court, four appeals to the Court of Appeal, and two unsuccessful leave applications to the Supreme Court. It took six years for New Zealand to process this request.
9.64There is clearly the need for a person sought to be able to meaningfully challenge an extradition request in the courts. Equally, a requesting country should be afforded the opportunity to challenge the validity of any court decision affecting the outcome of its request. We doubt, however, that New Zealand’s current appeal and review practice is the most appropriate way of meeting those needs.
9.65As a guiding principle, we consider there should be one general right of appeal to the High Court and thereafter appeal only to a higher court by leave. Provisions in the Act should make it plain that, at the general appeal, the parties may challenge any or all of the decisions made by the judge during the course of the extradition proceedings.
9.66We acknowledge this proposal has its own consequences. A strong argument could be made that matters such as disclosure and admissibility need to be resolved sequentially and speedily rather than waiting until the final decision has been made. We consider, however, that this concern is balanced by the greater efficiency and transparency of the proposed appeal process. In addition, we envisage that the tailor-made procedural rules proposed throughout this chapter should reduce the confusion surrounding disclosure and admissibility.
9.67Another consequence of our proposal is that there would still be three possible tiers of appeal in extradition proceedings. This reflects the usual hierarchy of the courts and our proposal that extradition proceedings should originate in the District Court.
Question
Q39 Should the new Extradition Act provide that any issue sought to be challenged should be done by means of one general right of appeal against the District Court’s substantive decision to the High Court?
