Chapter 4
The relationship with the New Zealand Bill of Rights Act


The criminal process rights in NZBORA

4.4While some rights in NZBORA apply generally, for example sections 21 (the right to be free from unreasonable search and seizure) and 22 (the right not to be arbitrarily detained), other rights apply only in relation to someone charged with an offence.92 This creates an issue for extradition proceedings as in that context there is no New Zealand offence for which someone is being charged.

4.5Where a foreign government has requested New Zealand to surrender a person so that person can be tried or punished for a criminal offence of which they have been accused or convicted in that foreign country, the request will either be refused or result in an extradition proceeding in New Zealand. Those are the only two options. A proceeding must be held to determine whether the person should be extradited to the foreign country before any extradition can take place.

4.6An extradition proceeding has both domestic and international characteristics. Although the requesting party makes the request for the extradition, it will always be the receiving body in New Zealand that notifies the court and requests an arrest warrant to be issued. Furthermore, an extradition proceeding cannot be easily classified as civil or criminal.93 The proceeding does not call for a trial in New Zealand; the judge is not required to determine whether the person sought is guilty of the crime for which they have been accused or convicted. Rather, under our Bill the judge must determine whether there is an extraditable person,94 an extradition offence95 and whether any of the statutory grounds for refusing to surrender the person sought apply.96 For requests under the standard procedure, the judge must also consider whether there is a case for the respondent to answer based on the evidence presented by the requesting country.97 Even in these circumstances, the extradition hearing is not “treated as a trial on the merits because that approach would involve questioning the foreign state’s judicial system”.98
4.7By majority, the Supreme Court recently held in Dotcom v United States of America (Extradition) that the two sections providing criminal process rights in NZBORA are not engaged in extradition proceedings because a person who is sought for extradition is not “charged with an offence” in the way those sections envisage.99 The Supreme Court acknowledged the strong line of authority in overseas jurisdictions that had concluded that the nature of the extradition process does not attract criminal process rights. For instance in Kirkwood v United Kingdom, it was held that while an extradition hearing involves a limited examination of the issue to be decided at trial, it does not constitute or form part of the process for determination of guilt or innocence.100
4.8The majority in Dotcom (Extradition) held that sections 24 and 25 of NZBORA are framed to protect the rights of persons who are to be the subject of the criminal trial process, not the extradition process, which has a different limited purpose. McGrath and Blanchard JJ noted:101

We see no sound basis in human rights jurisprudence or otherwise for an interpretation of the criminal process rights protections in the BORA that would apply them to an extradition hearing. Their application would change the preliminary nature of the hearing and give it an altogether different character.

4.9However, not all the criminal process rights in NZBORA are inapplicable. McGrath and Blanchard JJ went on to note in relation to their determination of what natural justice might nevertheless require:102

The determination of whether requested persons are eligible for surrender is made under a judicial process. The Extradition Act requires a hearing, meaningful judicial assessment of whether the evidence relied on by the requesting state demonstrates a prima facie case, and a judicial standard of process in making the decision. The Act also gives requested persons the right to contest fully their eligibility for surrender, including by calling evidence themselves and making submissions to challenge the sufficiency and reliability of the evidence against them. The record of case procedure does not limit requested persons’ ability or right to do this. The consequence is that an extradition hearing under the Extradition Act has the same adversarial character as a committal hearing. All these features reflect a high content of natural justice in the process.

4.10We have adopted this approach in framing our Extradition Bill, namely that while the values contained in many of the rights in section 24 and 25 of NZBORA remain important in the context of extradition and fall within broad rubric of natural justice, they might need to be altered to fit this context.103

The right to natural justiceTop

4.11Section 27 of NZBORA provides for the right to justice. Subsection (1) provides that:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

4.12The principles of natural justice concern procedural fairness. Observing natural justice principles has traditionally required compliance with the right to hear the other side, and the right to be free from bias by the decision maker. The principles operate to ensure a fair decision is reached by an objective decision maker.

4.13As indicated above, the Supreme Court in Dotcom (Extradition) discussed the applicability of section 27 of NZBORA to extradition proceedings. The Court held that in the exercise of its public functions under the Extradition Act, the court is a public authority determining the rights of persons, such as the appellant’s liberty and freedom of movement, and accordingly, the right to natural justice must be observed in extradition.104 It then clarified that the “content of the right to natural justice, however, is always contextual”.105
4.14The right to natural justice, for instance, imports a disclosure requirement, but as the majority emphasised, it has to be within the context of extradition. In the Extradition Bill, we have included a requirement that, in standard extraditions, if the person sought is accused of an extradition offence, the requesting country must produce evidence to show that there is a criminal case for that person to answer.106 We propose that this evidence should be presented to the Court as a summary, rather than presenting all the actual evidence.107 In a criminal proceeding, section 27 would entitle a person facing trial in New Zealand to receive a copy of all of the witness statements and other evidence the prosecutor seeks to rely on at the hearing, prior to the hearing itself. However, as recognised by the Supreme Court, in an extradition proceeding disclosure would require something less, as what is involved is not a full trial where the court is concerned with matters of final proof of guilt.
4.15But, importantly, under our proposal the Record of the Case would also require the disclosure of any known evidence that could substantially undermine the case.108 In the context of an extradition hearing, these disclosure rights are appropriate and would comply with section 27.
92New Zealand Bill of Rights Act 1990, ss 24–25.
93We understand that extradition proceedings may be classified as civil proceedings for the purpose of court management processes in New Zealand. However, the case law indicates that they are “criminal proceedings, albeit of a very special kind”: R (Government of the United States of America) v Bow Street Magistrates’ Court [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157, cited favourably in Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 [Dotcom (Extradition)].
94Extradition Bill, cl 5 defines an “extraditable person”.
95Extradition Bill, cls 7–8 define “extradition offence”. This is discussed further in ch 6.
96Extradition Bill, cls 20–21 set out the grounds for refusal. Clauses 34 (standard) and 44 (simplified) explain when the Court may determine that a person is liable for extradition.
97Extradition Bill, cl 34(4)(c) and 34(5). This inquiry is discussed further in ch 9.
98Bujak v District Court at Christchurch [2009] NZCA 257.
99Dotcom (Extradition), above n 93.
100Kirkwood v United Kingdom (1984) 6 EHRR 373 (ECHR).
101Dotcom (Extradition), above n 93, at [115].
102At [184].
103See also Glazebrook J’s judgment in Dotcom (Extradition), above n 93. Glazebrook J disagreed with McGrath and William Young JJ, finding that ss 24–25 of the New Zealand Bill of Rights Act 1990 do apply in the extradition context, but she acknowledged that the application of those provisions is “subject to any necessary modifications related to the nature of the extradition proceedings”: at [277].
104At [118] per McGrath and Blanchard JJ.
105At [120] per McGrath and Blanchard JJ.
106Extradition Bill, cl 34(4)(c). The evidential inquiry is discussed further in ch 9.
107Extradition Bill, cl 33(2)(d).
108Extradition Bill, cl 23(3)(d) and 23(3)(e)(i).