Chapter 5
Grounds for refusal


5.1The scope and application of the grounds for refusal in extradition and mutual assistance do not neatly align. Certain grounds are unique to each of the mutual assistance or extradition contexts, and even where the grounds are similar in substance, their application is different. This means that whereas extradition must be refused in almost all circumstances where the decision maker is satisfied that a ground is engaged,110 the new Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill (Mutual Assistance Bill) provides more latitude for the Central Authority to assess the likelihood that a ground will in fact be engaged.111 Additionally, in the context of mutual assistance, the Central Authority has room to balance the risk of a ground applying against New Zealand’s international obligations and whether or not providing assistance would otherwise be in the interests of justice.112

5.2In this chapter we first explain how we have designed the ground for refusal process in relation to extradition, and then in relation to mutual assistance.

110The exception being where there is a ground in a treaty, which the treaty provides may (as opposed to must) apply: see Extradition Bill, cl 21(2).
111It makes sense to provide some room here for the Central Authority to move, particularly in relation to those areas where New Zealand has provided exceptions to the absolute double jeopardy rule; that is: (1) where the accused has committed an administration of justice offence resulting in a “tainted acquittal” (Criminal Procedure Act 2011, s 151); or (2) where there is “new and compelling evidence” not available at the time of the first trial, which indicates with a high degree of probability that the accused is guilty of the offence acquitted (Criminal Procedure Act 2011, s 154). Australia has also made double jeopardy a discretionary ground for refusal: Mutual Assistance in Criminal Matters Act 1987 (Cth), s 8(2)(c).
112This is the effect of the Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], cl 23(3). This assessment also has implications in relation to our decision to extend all grounds for refusal to the investigation stage. In its submission, Police expressed concern that extension of grounds for refusal to the investigation stage would undermine its ability to collaborate with other agencies. We envisage that the considerations in cl 23(3) should act to ameliorate any inappropriate implications of this extension.