Chapter 9


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.448

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:

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.452 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,453 four appeals to the Court of Appeal,454 and two unsuccessful leave applications to the Supreme Court.455 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.456 Equally, a requesting country should be afforded the opportunity to challenge the validity of any court decision affecting the outcome of its request.457 We doubt, however, that New Zealand’s current appeal and review practice is the most appropriate way of meeting those needs.

Options for reformTop

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.


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?

448Extradition Act 1999, s 68.
449Habeas Corpus Act 2001, s 6.
450The relevant provisions in the Bail Act 2000 are s 44 (in relation to pt 4 proceedings) and s 49(2) as it read prior to the commencement of the Criminal Procedure Act 2011 (in relation to pt 3 proceedings). These provisions apply by virtue of ss 23(3), 23(5)(b), and 43(4) of the Extradition Act 1999.
451Judicature Amendment Act 1972, s 4(1).
452Judicature Act 1908, s 67; and Supreme Court Act 2003, ss 12 and 14.
453Bujak v Republic of Poland, above n 439; Bujak v District Court at Christchurch, above n 441; and Bujak v Minister of Justice HC Wellington CIV-2009-485-2266, 18 November 2009. Mr Bujak also applied to the High Court for an interim order: Bujak v Minister of Internal Affairs HC Wellington CIV-2009-485-1884, 3 November 2009.
454Bujak v Republic of Poland [2007] NZCA 392, [2008] 2 NZLR 604; Bujak v District Court at Christchurch, above n 441; Bujak v Minister of Justice [2009] NZCA 570; and Bujak v Minister of Internal Affairs [2009] NZCA 522.
455Bujak v District Court at Christchurch [2009] NZSC 96 and Bujak v Minister of Justice [2010] NZSC 8.
456This accords with the principles of natural justice protected under s 27 of the New Zealand Bill of Rights Act 1990.
457This accords with the interests of comity as discussed throughout this issues paper.