Contents

Chapter 9
Procedure

Disclosure

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.404 The only specific reference to disclosure in the Act is in the provision governing regulation-making powers.405
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.406 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.407 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.408 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.409 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.410
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)411 apply independently of the Extradition Act.412 The Official Information Act only applies to information already in the possession of the New Zealand Government.413 The Court was, however, divided on exactly what the principles of natural justice required in terms of disclosure in extradition proceedings.414 Thus, the disclosure regime for standard extradition proceedings remains somewhat uncertain.

Options for reform

Guiding principles

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:

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.422 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.423 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.424

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.

Procedure

9.36Prior to the substantive hearing:

Question

Q37 Should the new Extradition Act contain a disclosure regime, and if so, what should be its scope and what should it look like?

404It is worth noting that no issue of disclosure arises if the person sought makes a habeas corpus application. That is because, given the urgent nature of these proceedings, s 7(5) of the Habeas Corpus Act 2001 states that neither party is entitled to general or specific discovery, and the High Court Rules surrounding the discovery and inspection of documents do not apply.
405Extradition Act 1999, s 120(e). This gives the Governor-General the power to make regulations in relation to “the pre-hearing disclosure of information” and “the powers of the court when information that is required to be disclosed by the regulations is not disclosed”. No regulations have been made for this purpose.
406Extradition Act 1999, s 22(1)(b).
407See Summary Proceedings Act 1957, ss 168 and 176.
408By way of example, the disclosure obligation on the defendant in section 176 of the Summary Proceedings Act only arises if an oral evidence order is issued. In United States of America v Dotcom [2012] NZHC 2076, Winkelmann J noted (at [87]) that oral evidence orders are available in extradition proceedings and must be obtained if a person is to give oral evidence in an extradition proceeding. On appeal, Elias CJ disagreed with this observation and commented that oral evidence orders are not required in extradition proceedings because such proceedings will always involve a “committal hearing” as opposed to a “standard committal” (on the papers) under the Summary Proceedings Act (Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [46] per Elias CJ). The question of when a defendant’s obligation to disclose material might arise was not in issue, so neither Judge addressed this point specifically. Their debate over the availability of oral evidence orders does, however, highlight some of the difficulties in giving sections 168 and 176 practical effect in an extradition context.
409Extradition Act 1999, s 22(1)(b).
410Dotcom v United States of America, above n 408, at [125] per McGrath and Blanchard JJ, [217] per William Young J, and [273] per Glazebrook J.
411New Zealand Bill of Rights Act 1990, s 27.
412Dotcom v United States of America, above n 408, at [74] per Elias CJ, [118] and [122] per McGrath and Blanchard JJ, [212] and [231] per William Young J, and [274] per Glazebrook J.
413Notably, most of the information held by the New Zealand authorities will be preliminary communications between Crown Law or the Police and the requesting state regarding the form and content of the extradition request. This type of material is not generally disclosable under the Official Information Act, as privilege and confidentiality exceptions tend to apply.
414Dotcom v United States of America, above n 408, at [185]–[193] per McGrath and Blanchard JJ, [229] per William Young J, and [289]–[301] per Glazebrook J. This raised the related issue of whether the court has inherent jurisdiction to make disclosure orders in extradition proceedings, which also divided the court; majority at [196] per McGrath and Blanchard JJ and [238] per William Young J; minority at [86] per Elias CJ and [309] per Glazebrook J.
415Dotcom v United States of America, above n 408, at [64] per Elias CJ, [186] per McGrath and Blanchard JJ, and [291]–[292] per Glazebrook J.
416At [57] and [87] per Elias CJ, [190] per McGrath and Blanchard JJ, and [228] per William Young J.
417At [53] per Elias CJ, [190] per McGrath and Blanchard JJ, [212]–[232] per William Young J, and [281] per Glazebrook J.
418At [58] per Elias CJ, [153] per McGrath and Blanchard JJ, and [264]–[265] per Glazebrook J.
419Knowles v Government of United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35].
420Dotcom v United States of America, above n 408, at [58] and [67] per Elias CJ, [150]–[152] per McGrath and Blanchard JJ, [228] and [238] per William Young J, and [264]–[265] per Glazebrook J.
421At [122] per McGrath and Blanchard JJ, [231] per William Young J, and [274] per Glazebrook J.
422McGrath and Blanchard JJ make a similar suggestion in Dotcom v United States of America, above n 408, at [177].
423Most of New Zealand’s bilateral extradition treaties contain a process for making government-to-government requests for further information.
424See Dotcom v United States of America, above n 408, at [181]–[182].