7.60Below, we present and assess the options for reform, under three key questions:
7.61In relation to the first question, the options are:
7.62In reality, each may be employed in relation to different categories of countries under the legislation. In particular, as noted in Chapter 6, we anticipate that the backed-warrant (no evidential inquiry) approach should be retained for at least some countries, as this is an important part of how New Zealand’s extradition system operates with countries with which it is particularly close.
7.63One option is to take the Australian approach and require no evidential inquiry into the particular case against the person sought for all extraditions. This would be similar to an extension of the backed-warrant approach that already applies to extradition requests from Australia and the United Kingdom. This approach would imply that New Zealand has determined to exercise a high degree of trust with the countries with which it allows extradition.
7.64A shift to a no evidential inquiry approach would enable greater cooperation with countries with which New Zealand has not been able to have an extradition relationship or that have faced difficulties in meeting New Zealand’s evidential requirements. This would potentially allow more extradition to occur, which could be seen as enhancing the prosecution of crime internationally.
7.65There are concerns that such an approach would be going too far. The testing of the case against the person sought for extradition has been a key feature of New Zealand’s extradition law. It has ensured a certain degree of protection for the individuals involved and has provided a barrier that makes extradition less likely with countries with justice systems about which there are concerns. As noted, Australia’s approach is supported by it having negotiated and updated its treaty relationships with a wide segment of the countries to which it extradites. This provides it with an alternative way of being satisfied with a requesting country’s justice system.
7.66We do not support the broad extension of the no evidential inquiry approach. While we are in favour of its use for a narrow group of countries with which New Zealand has a close relationship (Category 1 countries), it should not be adopted across the board.
7.67We are in favour of retaining the court inquiry for most countries because there is a strong argument that there should be some oversight from the New Zealand justice system in relation to the nature and strength of the case against a person. The responsibility that the New Zealand Government has for such a person arises from the fact that the person is within New Zealand’s jurisdiction. The Government should owe those within its borders a duty to take seriously any threats to their liberty. Where the request does not require consideration of the case against the person, because the requesting country has been designated as not requiring one, the New Zealand Government has effectively checked and approved that it is satisfied with the prosecutorial standards of that country at a general level and so does not need to do so in a specific request. Extradition is extreme in the impact it has on the liberty of an individual and the potential for hardship. Our view is that, because of the significant consequences of extradition, the New Zealand approach should be to exercise a degree of caution with regard to extradition requests from most countries.
7.68This approach would retain the present emphasis on protecting the liberty interests of the individual who is the subject of the request. This minimises the risk of extraditing a person to face a spurious or unjust charge because there will be a greater check undertaken by the New Zealand courts.
Q14 Should the new Extradition Act retain an inquiry by the New Zealand courts into the evidence against the person sought for extradition for most countries?
7.70If the decision is made to retain a court inquiry into the case against the person sought for extradition for most countries, the legislation will need to set the standard to which the court needs to be satisfied that the extradition is justified.
7.71The question of the factors of which judges must be satisfied, and to what degree, is expressed differently in different contexts, such as issuing warrants for search or arrests, deciding bail applications, or adjudicating guilt. In our view, none of these completely or easily state what we think a judge should do when considering whether there is a sufficient case to justify extradition.
7.72The judge should be reasonably satisfied that the elements of the offence are made out and that there is sufficient evidence in relation to each element. There is a range of ways this judicial task could be expressed:
7.74The main problem with retaining this particular formulation is that it is old and not well understood. The standard comes with the baggage of many years of case law that is unlikely to be helpful in the extradition context. If the committal test is retained for extradition proceedings, consideration will need to be given to how it is spelt out in the statute. Further, a decision to retain a prima facie case approach could be seen as a missed opportunity to lower the threshold and reduce one of the key barriers to extradition in the way that Australia did when it shifted to legislation that focused primarily on a no evidential inquiry approach. A shift away from the prima facie case standard would be seen as a way of placing greater trust in the legal systems of other countries.
[A] reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence.
7.76Retaining a form of a committal test would preserve a relatively high standard for the inquiry into the evidence. It would allow continuity with the existing law and would not be seen as an erosion of the standard at which New Zealand allows persons to be extradited to another country. The committal test has continued to operate successfully in Canada, where measures were taken to enhance Canada’s ability to cooperate in extradition with foreign countries through the form of evidence and admissibility standards instead.
7.78Importing this standard into extradition law would mean that the court could reject an application for extradition where, on the evidence presented, there is no case to answer. This test would have the advantage of alignment to a more familiar domestic criminal law standard, but it has the risk of bringing with it domestic criminal law concerns.
7.79New Zealand’s extradition law could attempt to adopt a sufficiency of evidence standard that falls in between the prima facie case standard and the no evidential inquiry standard. This would require countries to provide evidence that goes some way towards establishing the case against the alleged criminal, but the burden would not be as significant.
Q15 Should the correct judicial inquiry be whether a judge is reasonably satisfied that there is sufficient evidence in relation to the offence to justify extradition?
7.83The options are to:
7.84Requiring actual evidence may allow the New Zealand courts to closely scrutinise the process that has gone on in the requesting country. It may, therefore, be better able to determine whether something is amiss. This may be perceived as providing greater protection of the liberty interests of the individual who is the subject of the request.
7.85However, it is not possible for a foreign country to fully present the evidence that would be available during the trial within that country, so there is always a degree of summarising that must necessarily occur. If a requesting country has determined to base an extradition request on fake evidence, it is just as likely to be able to do this in the provision of actual evidence as it is through a record of the case. It is better to have more direct protections against dubious requests, or requests from a country about which there are human rights or justice system concerns, at other points in the scheme rather than attempting to address such concerns in the court’s inquiry into the case against the person.
7.87These issues are not insurmountable. The record of the case procedure, if given a wider application and amended to provide clarification, has the potential to significantly improve New Zealand’s extradition system by enabling more straightforward cooperation with foreign countries. It would provide a balance to other aspects of our proposed scheme under which we are proposing both broadening the grounds for refusal and retaining an inquiry into the evidence of the alleged offending for most countries. These concessions to liberty interests need to be balanced in some way, as New Zealand has international commitments to facilitate extradition. If this is not achieved, New Zealand risks becoming a comparatively difficult country to extradite from and, therefore, a safe haven for international criminals.
7.88A more relaxed approach to the admissibility rules, through greater reliance on the record of the case procedure, would give due recognition to the validity of criminal justice systems that differ significantly from New Zealand. It would indicate that New Zealand has faith in requesting countries to resolve evidential issues through their own processes. It would also align with the approach that has been taken in Canada.
7.89The Supreme Court of Canada’s decision in Ferras provides reassurance that the Canadian record of the case procedure can be used in a fair manner, and on appropriate occasions, the court itself might ask for more evidence.
Q16 To what extent should requesting countries be able to provide a summary of evidence to satisfy the court regarding the case against the person sought for extradition?