Other types of evidence
10.6The Record of the Case procedure only applies to standard extradition proceedings. Also, it only relates to evidence offered by the Central Authority in respect of the criteria for extradition.
10.7In all other instances (that is, all evidence in simplified extradition proceedings, respondent evidence and ground for refusal evidence) evidence will need to be presented in the form of documentary evidence or written statements. The Court will have a limited power to allow oral evidence. The remainder of this chapter explains how we envisage this will work in practice.
10.8The Extradition Bill does not contain any provisions governing documentary evidence. That is because the Evidence Act applies to all court proceedings and already contains a subpart on this topic. The subpart includes admissibility provisions and provisions that create presumptions as to authenticity. Many of these provisions are directed specifically at foreign evidence.
10.9We do not consider it necessary or appropriate to create an alternative set of rules for extradition proceedings. Part 9 of the Extradition Act 1999 is illustrative of this point. It contains its own provisions relating to authentication and documentary hearsay. As we discussed in the Issues Paper, these provisions are difficult to reconcile with the Evidence Act and to apply in practice. Simply relying on the Evidence Act avoids this issue. The documentary evidence rules in the Evidence Act are sufficiently flexible to accommodate extradition proceedings and address the areas of concern that we identified in the Issues Paper.
10.10The following provisions in the Evidence Act are particularly relevant to extradition:
(a) New Zealand and foreign official documents – this section creates a presumption of authenticity in relation to various documents including those that purport to have been printed or published with the authority of the judiciary in a foreign country or by an international organisation.
(b) Translations – this section creates a presumption that a translation is accurate, in the absence of evidence to the contrary.
(c) Presumptions as to New Zealand and foreign official seals – this section creates a presumption of authenticity in respect of any seal of a foreign country or public body and in respect of any seal or signature of a person holding a foreign public office.
(d) Evidence of foreign law – this section outlines a variety of different ways of proving foreign law, including simply producing any document containing the foreign statute that appears to the judge to be a reliable source of information.
10.11The Extradition Bill contains an admissibility provision for written statements. There are two reasons for including this provision in the Bill, rather than simply relying on the Evidence Act:
(a) First, under the Evidence Act a written statement would qualify as hearsay. Therefore, to be admissible, the statement would need to meet the statutory criteria for admitting hearsay. These include an inquiry into whether the maker of the statement is available to give evidence in person and, if so, the likely cost that would entail in terms of time and money and, potentially, a notice requirement. Our view is that these criteria are overly cumbersome in the context of an extradition hearing. These hearings will routinely involve statements from foreign witnesses and they are not trials. Furthermore, once a statement is admitted it is ultimately up to the Court to decide how much weight to place on it in making its decision.
(b) Second, we wanted to avoid the requirement in the Evidence Act that evidence must be given by oath or affirmation. Foreign jurisdictions use a broad range of differing oath and declaration procedures. We consider that, for the purpose of admissibility, a declaration that the statement is true and was made in contemplation of court proceedings would be sufficient.
10.12The admissibility provision in the Bill is based on the equivalent provision governing formal written statements in the Criminal Procedure Act. We have, however, included an additional requirement that the circumstances relating to the statement should provide a reasonable assurance that the statement is reliable. This mirrors one of the other statutory criteria for admitting hearsay under the Evidence Act. We chose to replicate this requirement because it will focus the Court’s attention on the critical issue of apparent reliability.
Oral evidence ordersTop
10.13Alongside the admissibility clauses in the Bill, we have included a provision that enables the Court to make an oral evidence order. This is based on the equivalent powers in the Criminal Procedure Act. The threshold for making such an order is high. The Court must consider it necessary to take the person’s evidence orally, in order to make a liability determination. Accordingly, the oral evidence must be critical to the entire case.
10.14The Bill also specifies who may be the subject of an oral evidence order. In doing so, it clarifies that such an order may not be made for any person who is associated with a Record of the Case. This includes the drafter of the Record and any person whose evidence is summarised in it. We excluded these people because the Bill contains an alternative process the Court should follow if it has grave concerns about a Record. In brief, the Court should explain its concerns to the Central Authority and adjourn the hearing. The Central Authority should then discuss the matter with the requesting country. This process is more in keeping with the comity principles that underlie all extraditions and is discussed further in the commentary to the Extradition Bill in Part 4 of this Report.
- R26 Evidence should ordinarily be presented for extradition hearings in written form. However, in limited circumstances the Court should have the power to make an oral evidence order.