Chapter 9
Procedure

The substantive hearing

9.37We do not propose to radically change the types of matters that must be determined by the court at a substantive extradition hearing. Under the current regime, those matters are:

whether the requisite supporting documents have been provided to the court;
whether there is an extradition offence, an extradition country, and an extraditable person;
for a standard request, whether the evidence produced or given at the hearing:

in the case of a person accused of an extradition offence, would justify the person’s trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand; or
in the case of a person alleged to have been convicted of an extradition offence, would prove that the person was so convicted; and

whether any of the restrictions on surrender in the Act or in an applicable treaty apply.

9.38In this section, we examine two interrelated questions: What evidence should be considered at a substantive extradition hearing? How should that hearing be conducted?

Evidence

9.39There are four types of documents that may need to be produced at an extradition hearing:

(a) The supporting documents:

for a standard request:425

an arrest warrant;
(if applicable) proof of conviction and any sentence; and
a written deposition setting out a description of the offence, the applicable penalty, and the conduct constituting the offence; and

for a backed-warrant request:426

an arrest warrant.

(b) Additional information about New Zealand’s extradition relationship to the requesting country and the foreign offence.

(d) For standard requests only, evidence of the alleged offending. This evidence is usually presented in written depositions. However, some countries may present it in the form of a record of the case.427

9.40The documents described above will only be considered at a substantive extradition hearing if the applicable evidentiary requirements in the Extradition Act and the Evidence Act 2006 have been complied with. This involves a three-stage process:428

The document must be relevant.
If the document was generated overseas, it must be duly authenticated.
Some documents must also comply with the domestic rules of evidence in the Evidence Act.

Relevance

9.41The Evidence Act provides that the starting point is that relevant evidence is admissible, unless an enactment states that it is inadmissible or excluded.429 The Extradition Act does not refer to this fundamental principle, but it does contain provisions that seem to exclude otherwise relevant evidence. For example, the Extradition Act specifically prevents a person sought under the backed-warrant procedure from adducing evidence to contradict the allegations made by the requesting country.430 As the backed-warrant procedure does not involve an inquiry into the case against the person sought, evidence contradicting the alleged offending is simply not relevant to a matter that needs to be determined.

9.42Under the standard procedure, the court must currently determine whether there is a prima facie case. The test is basically whether there is some evidence that, if accepted as accurate, would establish each essential element of the alleged offence. Defence evidence is relevant to this test if it is capable of completely answering the prosecution case. For instance, very strong alibi evidence might suffice. Accordingly, a person sought should be entitled to adduce this type of evidence at the hearing, and the new Act should make that clear.

9.43Part 9 of the Extradition Act states that a judge may receive evidence from a person sought that is relevant to a restriction on surrender if the judge considers the evidence to be reliable (whether it is otherwise admissible or not).431 This provision could be read as suggesting that the requesting country is not entitled to produce such evidence. However, a requesting country ought to be able to adduce evidence concerning a pleaded restriction on surrender if that evidence is relevant. While the provision in Part 9 reflects that the person sought has the burden of proving that a restriction on surrender applies, this provision should provide that the requesting country may adduce evidence to rebut a submission that a restriction applies.

Authentication

9.44Given the nature of extradition proceedings, most relevant evidence will have been generated overseas. Part 9 of the Extradition Act envisages that this evidence will generally be in the form of foreign depositions (including exhibits), official certificates, or judicial documents (including warrants).432 They must be “duly authenticated” before being admitted as evidence.433

9.45The authentication provisions in the Extradition Act can be cumbersome to apply:

The Act does not cross-reference particular New Zealand law that might allow authentication. Part 4 of the Evidence Act is entitled “Evidence from overseas or to be used overseas”, but the only provisions relating to the admissibility of foreign documents relate solely to civil proceedings in the High Court. Extradition proceedings take place in the District Court and are not easily classified as either civil or criminal.
A second form of permissible authentication is authentication that complies with a bilateral extradition treaty. Given the outdated language that is used in these treaties, this can cause practical difficulties.434
The third form of authentication requires documents signed by a foreign official to be verified by the oath of a second official or by a state seal. The court may then take judicial notice of the second signature or seal. As discussed above, in relation to the arrest warrant, it is difficult to see what value is added by the second signature or seal in such circumstances.

9.46These authentication provisions should be simplified. The new extradition legislation should provide:

a prescribed form for certifying any bundle of overseas documents presented in support of an extradition request;
that any document purporting to be signed by an official of the requesting state may be admitted as evidence without proof of the signature or the official character of the person appearing to have signed it;435 and
that the requesting country may choose, if a bilateral extradition treaty applies, to use the authentication process described in the treaty or in the Act.

Compliance with domestic rules of evidence

9.47The Extradition Act clearly states that all evidence that complies with the Evidence Act is admissible at an extradition hearing.436 The difficulty arises in relation to relevant documents that have been generated overseas. Do these documents need to comply with the provisions of the Evidence Act in order to be admitted at a substantive extradition hearing?

9.48The doubt arises because, while certain provisions in Part 9 of the Extradition Act aim to relax the domestic rules of evidence in relation to overseas documents, the extent of that relaxation is not clear.

9.49As discussed above, a court may receive foreign evidence that is relevant to a restriction on surrender if it considers the evidence to be reliable and if the person sought wishes to adduce it. The Act expressly states that such evidence does not need to be “otherwise admissible in a court of law”,437 but it is not clear whether this dispensation applies equally to a requesting country.

9.50There is no principled reason to distinguish between the person sought and the central authority or requesting country in this regard. If the court is capable of assessing the reliability of this type of document at face value, it should not matter which party it is produced by.

9.51A second and much more complex issue arises in relation to the evidence of the alleged offending that a requesting country must produce in support of a standard extradition request. This evidence will almost always have been generated overseas. If the record of the case procedure is not used, Part 9 of the Extradition Act applies. Under Part 9, evidence of the alleged offending is admissible if it is duly authenticated and will be admitted even if it contains documentary hearsay.438

9.52At first glance, the provisions in Part 9 of the Extradition Act seem to suggest that overseas documents are automatically admissible if they are duly authenticated and there is no need to comply with the other domestic rules of evidence in the Evidence Act. The matter is complicated, however, by the requirement in the Extradition Act that the court assessing evidence of the alleged offending must be satisfied that this evidence would “according to the law of New Zealand, but subject to this Act” justify the person’s trial. The relationship between this phrase and Part 9 was considered in the Bujak litigation. The upshot of that litigation appears to be that:

duly authenticated documents are not automatically admissible;439
such documents must comply with domestic rules regarding hearsay evidence (that is, documentary hearsay is admissible in accordance with Part 9 of the Extradition Act, and other forms of hearsay must comply with the hearsay rules in the Evidence Act);440 and
such documents do not need to comply with the form requirements of domestic criminal procedure, as there is no provision to that effect in the Act.441

9.53Requiring compliance with these rules places a huge burden on requesting countries, and it does not necessarily make it any easier for our courts to assess the true significance and reliability of the foreign evidence. It is also clear that New Zealand courts need to apply the law in a way that is broadly consistent with domestic law, taking into account extradition realities.

The conduct of the hearingTop

9.54Related to the issue of what evidence the court should consider at a substantive extradition hearing is the more practical issue of how the hearing should be conducted.

The current law – standard procedure

9.55The Extradition Act states that the court must conduct a standard extradition hearing in the same manner as if it was a domestic committal hearing for an indictable offence allegedly committed in New Zealand.442

9.56As discussed, committal hearings were abolished in 2013. Even before that, though, committal had become a largely automatic process that occurred without a hearing or submissions from the parties 14 days after formal written statements were filed.443 A committal hearing would take place only if a judge made an order that a witness should give oral evidence.444 Thus, the parallels to standard extradition hearings were already becoming blurred prior to the abolition of committal hearings.

Current law – backed-warrant procedure

9.57The Extradition Act originally stated that backed-warrant hearings should be conducted in the same manner as if a person had been charged with a summary offence in New Zealand (that is, an offence punishable by less than two years’ imprisonment).445

9.58In 2013, the relevant provision in the Extradition Act was amended.446 The reference to the manner in which the backed-warrant proceeding should be conducted was removed. Instead, a court conducting a backed-warrant hearing was simply given the same powers and jurisdiction as if a person had been charged with a category 2 offence for the purposes of the Criminal Procedure Act rather than a summary offence. The amended provision provides even less practical guidance.

Options for reformTop

9.59A clear structure for extradition proceedings could be achieved in two ways. The new Extradition Act could draw from the Criminal Procedure Act. Alternatively, the Extradition Act could provide for a specific, tailor-made procedure.

9.60On balance, we consider that the unique nature and purpose of extradition proceedings warrants the creation of a tailor-made procedure. Extradition proceedings are rare and complicated. Therefore, there is a need to place a clear structure around them. There is one existing domestic procedure – based on section 147 of the Criminal Procedure Act – that could be relied upon, as it is in some ways analogous to what is sought to be achieved in extradition proceedings.447 However, the analogy only goes so far. Some aspects of section 147 are inapt in the extradition context. It is preferable that the work be done to devise a procedure that, at every step, takes account of the particular type of proceedings at hand. This will need to include provisions governing practical matters such as witness summonses, adjournments, representation, name suppression, and orders.

Question

Q38 Should the substantive extradition hearing process have its own rules for evidence and procedure?

425Extradition Act 1999, s 18(4).

426Extradition Act 1999, ss 41 and 45(2).

427Extradition Act 1999, s 25. Under our proposals discussed in ch 7, this would apply to more countries.

428Part 9 of the Extradition Act 1999, which contains the provisions relating to evidence, refers to a court being able to “receive” documents if certain conditions are met (s 74(1)) and to other documents being “admissible as evidence” (ss 75 and 76).

429Evidence Act 2006, s 7.

430Extradition Act 1999, s 45(5)(a).

431Extradition Act 1999, s 74.

432Deposition is broadly defined in s 2 of the Extradition Act 1999 to include statements made on oath, by affirmation, and “before any court or judicial authority if, under the law of the country in which it is made, a person making such a statement falsely is liable to punishment”.

433Extradition Act 1999, s 75.

434By way of example, see Bujak v District Court at Christchurch HC Christchurch CIV-2008-409-785, 8 October 2008.

435This could be modelled on s 35 of the Canadian Extradition Act SC 1999 c 18, which states:

A document purporting to have been signed by a judicial, prosecuting or correctional authority, or a public officer, of the extradition partner shall be admitted without proof of the signature or official character of the person appearing to have signed it.

436Extradition Act 1999, s 77.

437Extradition Act 1999, s 74.

438Extradition Act 1999, ss 75 and 76.

439Bujak v Republic of Poland [2007] NZAR 512 (HC) at [46]–[53].

440At [46]–[53] and [72].

441Bujak v District Court at Christchurch, above n 434, at [35]–[37]; and Bujak v District Court at Christchurch [2009] NZCA 257 at [37]–[38]. This litigation was further complicated by the fact that an imperial bilateral extradition treaty applied. The various decisions, however, all noted that s 24(2)(d) of the Extradition Act 1999, which contains the evidential sufficiency test for Part 3 requests, is not capable of being overridden by a treaty. Therefore, the comments of the courts regarding the significance of the phrase “according to the law of New Zealand, but subject to this Act” appear to be applicable to all Part 3 extradition cases, not just those that involve a treaty.

442Extradition Act 1999, s 22(1)(a).

443Summary Proceedings Act 1957, s 177(1)(a), repealed by Summary Proceedings Amendment Act (No 2) 2011, s 7(2).

444Summary Proceedings Act 1957, s 183, repealed by Summary Proceedings Amendment Act (No 2) 2011, s 7(2).

445Extradition Act 1999, s 43(1)(a), replaced by Criminal Procedure Act 2011, s 413.

446Extradition Act 1999, s 43(1)(a).

447Section 147 of the Criminal Procedure Act 2011 gives the court the power to dismiss a domestic criminal charge at any time before or during the trial, up until the verdict is given. Now that committal has been abolished, s 147 embodies the new mechanism for filtering out cases that involve insufficient evidence to proceed to trial. It is possible that the new Extradition Act could direct the court to conduct extradition hearings as if they were hearings to determine an application to dismiss a charge under s 147.

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Chapter 9 Procedure