9.26The Extradition Act does not contain clear guidance as to what information should be disclosed between parties under either the standard procedure or the backed-warrant procedure. The only specific reference to disclosure in the Act is in the provision governing regulation-making powers.
9.27The Extradition Act makes an indirect reference to disclosure in providing that, “so far as applicable and with the necessary modifications”, Part 5 of the Summary Proceedings Act 1957 applies to standard extradition proceedings. Part 5 contains provisions that require both the prosecutor and the defendant to disclose to each other the evidence that they intend to rely on at the committal hearing. It is debatable whether these provisions can be applied in an extradition context and the extent to which they would need to modified to give them practical effect. Regardless, the Summary Proceedings Act contains a fairly limited disclosure regime, as it does not give the committal judge the power to make a disclosure order.
9.28Until recently, there was the further argument that Part 3 of the Extradition Act might incorporate aspects of the Criminal Disclosure Act 2008. The Extradition Act contains the general principle that a court conducting standard extradition proceedings has the same powers as if the proceedings were a committal hearing. The Criminal Disclosure Act gave the court in committal hearings the power to make a disclosure order against either party. In a recent majority decision, however, the Supreme Court held that the Criminal Disclosure Act does not apply to standard extradition proceedings because it is not one of the statutes specifically listed in the relevant section and it does not apply independently.
9.29Notably, though, the Supreme Court held that the Official Information Act 1982 and the principles of natural justice in the New Zealand Bill of Rights Act 1990 (NZBORA) apply independently of the Extradition Act. The Official Information Act only applies to information already in the possession of the New Zealand Government. The Court was, however, divided on exactly what the principles of natural justice required in terms of disclosure in extradition proceedings. Thus, the disclosure regime for standard extradition proceedings remains somewhat uncertain.
Options for reform
9.30Despite being divided as to result, the Supreme Court in Dotcom v United States of America unanimously agreed upon several guiding principles relating to disclosure in extradition proceedings. Significantly, the Court held the following:
- The extent of disclosure is shaped by the nature of the proceeding.
- An extradition proceeding is not the equivalent of a domestic criminal trial. Therefore, the person sought is not entitled to the same disclosure as a person facing trial in New Zealand.
- Section 27 of NZBORA requires that the person sought is entitled to receive, at least, all of the documents that the requesting country seeks to rely on at the substantive extradition hearing, prior to the hearing itself.
- It is up to the requesting country to decide what material it wishes to rely upon at the substantive extradition hearing. There is no obligation for it to present all of the information that it has collected for potential use at trial.
- A requesting country is, however, subject to an obligation of candour and good faith to reveal anything that “destroys or very severely undermines” the material that it has put forward. The New Zealand authorities assisting the requesting country have a correlative duty to the court to use their own best endeavours to ensure that the requesting country complies with its obligations in this respect.
- Relevant material held by the New Zealand authorities (either because it has been provided by the requesting country or it has been generated in New Zealand) could be the subject of a disclosure order under the Official Information Act.
9.31There remain, however, some gaps in this disclosure regime. For example, the Court was unable to reach agreement as to whether the District Court has a statutory power or inherent jurisdiction to make a disclosure order against a requesting country’s disclosure regime.
The court’s power to order disclosure
9.32The new extradition legislation should contain a power for the court to make orders regarding disclosure against the central authority or the person sought (to a very limited extent) but not the requesting country. Clear statutory provision should oust any need to rely on inherent jurisdiction.
9.33The court should not be able to order the requesting country to make disclosure. Such orders would not sit comfortably with the principles of comity and mutual respect between governments, and it is inappropriate for New Zealand courts to make disclosure orders against requesting countries. There are other ways of ensuring that the person sought is fairly informed of the case against them.
9.34The court could ask the requesting country (through the central authority) to provide more information on specific points. The central authority could then discuss the matter informally with the requesting country, or the issue could be raised through a more formal government-to-government request process. An important point to emphasise is that, ultimately, if a requesting country did not comply with such a request, it would run the risk of the court simply declining the extradition on the basis of insufficient evidence.
Evidence to be presented by the person sought
9.35Grounds for refusal will be considered at the substantive hearing, and the person sought may wish to adduce supporting evidence. If such evidence is adduced, the requesting state would be entitled to challenge it. This could be done by way of cross-examination, a request for an admissibility ruling, or the production of competing evidence. There needs to be procedure to allow the person sought to produce any proposed supporting evidence to the court and the central authority prior to the substantive hearing. Equally, the central authority would need to produce any competing evidence that the requesting country wishes to produce prior to the hearing as well.
9.36Prior to the substantive hearing:
- should the requesting country be obliged to disclose all of the evidence it intends to rely on at the substantive hearing and any information that would “destroy or very seriously undermine” its extradition request;
- should the person sought be obliged to disclose any evidence that he or she intends to rely on at the substantive hearing in relation to a potentially applicable ground for refusal; and
- if the person sought raises a ground for refusal, should the requesting country be obliged to disclose any rebuttal evidence it intends to rely on at the substantive hearing?
Q37 Should the new Extradition Act contain a disclosure regime, and if so, what should be its scope and what should it look like?