Overview of court procedure
8.32When a judge hears and determines liability for extradition, the judge will do so on what is set out in the NIP, the other documentation filed and submissions made.
8.33We envisage that, as a general rule, extradition hearings will occur having regard to documentary evidence and submissions made. Such is the nature of the task that we see oral evidence as only being necessary in exceptional cases. We discuss this evidence further in Chapter 10.
8.34The criteria for extradition and the grounds for refusal are extensively discussed elsewhere in this Report. Here it is sufficient to recap that in a standard extradition the judge must determine whether there is an “extraditable person”, “an extradition offence” and “a case to answer” as evidenced by the Record of the Case. If those criteria are met, the Judge should go on to consider whether any of the grounds for refusal are engaged. In most instances, it is incumbent on the respondent to raise these grounds, but there is no formal requirement for the respondent to provide an evidential basis for that submission. Where a ground for refusal is based on one of New Zealand’s international human rights obligations, the Central Authority will be obliged to explain why, in its view, the ground does not apply.
8.35As indicated earlier, the judge may decide to divide the extradition hearing in two, allowing the criteria for extradition to be determined in a separate hearing from the grounds for refusal. This may be necessary in cases that have a cross-over with immigration proceedings, as discussed in Chapter 11.
8.36If the judge is satisfied that none of the grounds for refusal apply that the Court is to consider, he or she may then need to decide whether to refer the case to the Minister for a determination of the death penalty or a discretionary treaty ground. If one of these grounds is referred to the Minister, then the Bill contains guidance on the timeframe for the adjournment. The central factor here will be the likelihood that the Minister will need to obtain an undertaking from the requesting country. In the absence of an undertaking, we expect that this decision could be made within 30 days.
8.37If the Minister does seek an undertaking then greater flexibility is necessary, to accommodate the type of delays that are inevitable during diplomatic negotiations. It is important, however, that the decision is still made with some haste as the person sought will be in custody or on bail in the interim. To strike a balance between these considerations, the Bill requires the Minister in such cases to make the determination “as soon as is reasonably practicable”. The Minister must also keep the Court and the parties updated as to his or her progress. In the meantime, we envisage that the Court would maintain oversight by regularly adjourning the matter.
8.38If the Minister directs the Court that a ground for refusal does apply, then the Court must discharge the respondent and the proceedings come to an end. If, however, the Minister directs that the referred ground does not apply, then the Court will make a formal finding that the respondent is liable for extradition.
8.39In simplified extradition proceedings, what the judge must be satisfied of is much more confined because there is no evidential inquiry. The other matters to be considered are technically the same, although we envisage that, as a matter of practice, there is likely to be less robust debate as to whether the grounds for refusal apply in simplified cases. In addition, given the nature of the grounds the Minister must consider under the Bill, there will be little scope for a case to be referred to the Minister. That is so, at least with reference to the current approved countries (Australia and the United Kingdom), neither of whom have the death penalty or a bilateral extradition treaty with New Zealand.