Contents

Chapter 9
The evidential inquiry

On what evidence should the Court base its decision?

The Record of the Case

9.31In the vast majority of cases, the only evidence relevant to the Court’s inquiry will be the evidence of the alleged offending, as collated by the requesting country and presented to the Court. In our Issues Paper, we proposed that in future this evidence should always be presented in the form of a Record of the Case. We suggested that in relation to an accused person, a Record of the Case should summarise the evidence that is available for the foreign trial, but the primary evidence need not be attached. We noted that this would be very similar to the Canadian approach and proposed that we closely follow the Canadian model in new extradition legislation.270

How it works in Canada

9.32We understand that in Canada the International Assistance Group in the Canadian Department of Justice is responsible for processing incoming extradition requests. It receives between 100 and 150 extradition requests each year, most of which relate to accused persons, and the requests attach a Record of the Case. These Records tend to range from between five and 20 pages depending largely on the complexity of the alleged offending.

9.33The International Assistance Group works closely with requesting countries to ensure that they understand the requirements of the Canadian system. Those requirements have been distilled into the following practical guidance given to potential requesting countries on how to prepare a Record of the Case in relation to an accused person:271

In the case of a person sought for prosecution, the Record of the Case must summarize the evidence which is available for use in the prosecution for the particular offence or offences. It is important to note that a summary of the facts of the case is not sufficient. There must be a detailed summary of the actual evidence in support of each of the alleged offences. This may be in the form of a hearsay statement prepared by an investigating officer or magistrate.

For example, Mr. Smith is charged with the murder of Mr. Jones. It is alleged that Mr. Smith confronted Mr. Jones outside a bar in front of several people and shot him at point blank range. Mr. Smith died in hospital. The Record of the Case should include a summary of the following types of evidence:

While it is not necessary to do so, you may attach statements, reports or other documents to the summary.

The Record of the Case itself should not contain a reference to the offence charged in the requesting state or to any other information required under the treaty. It should contain exclusively a summary of the evidence in the case.

Where the person is sought for prosecution, the Record of the Case must be certified by a judicial authority or a prosecutor. The authority who provides the certification must be able to attest that the evidence summarized in the Record of the Case is available for trial and either:

(i) is sufficient under the law of that state to justify prosecution, or

(ii) was gathered according to the law of that state.

The appropriate authority to give the certification, as well as the choice between (i) and (ii), will depend upon the nature of your legal system. Generally, we anticipate that common law countries will provide a certification by a prosecutor in accordance with (i) while civil law countries will have a judicial authority certify in accordance with (ii).

9.34The Canadian Act also requires a country seeking the extradition of a convicted person to prepare a Record of the Case.272 The requirements for this type of Record are different and are discussed further in Chapter 10.

The concerns raised during consultation

9.35Throughout the consultation we mainly encountered cautious support for our Record of the Case proposal. Prosecuting agencies and defence practitioners alike told us that a summary of the evidence would greatly assist them in understanding the foreign case. Further, it would avoid our courts becoming bogged down in potentially voluminous and confusing primary evidence. As noted in our Issues Paper, a Record of the Case would also theoretically have the benefit of being easier for civil law countries to prepare.273

9.36All of those we consulted, however, identified areas of concern. The common issues raised were:

(a) What mechanisms would exist for quality control?

(b) Could the respondent argue that the Record is simply unreliable?

(c) Would New Zealand’s usual rules of evidence apply to the content of the Record of the Case?

(d) Could evidence gathered in New Zealand be included in a Record of the Case? If so, what rules of admissibility would apply to that evidence?

(e) Would the Court be able to ask to see the primary evidence if it had concerns?

(f) Could the requesting country produce the primary evidence if it wanted to?

(g) Could a Record of the Case be amended or supplemented during the extradition proceedings?

(h) How would the respondent challenge a Record of the Case?

9.37Our view is that these concerns are surmountable and should be addressed in new extradition legislation. We explain how our Bill deals with each of these concerns below.

Quality control

9.38In the Bill, we have made the Central Authority, as the applicant, primarily responsible for quality control. It is not obliged to accept a low quality Record of the Case274 and can withdraw a NIP at any time.275 We view this as being broadly analogous to the domestic practice of the Solicitor-General, and the Crown Prosecutors under him or her, assuming responsibility for Crown prosecutions.276

Reliability

9.39A Record of the Case in Canada is not just a summary of the evidence. It must be accompanied by what is known in Canada as a “certification”. This is a document prepared by the foreign prosecutor or investigating judge, which provides the Canadian authorities with an assurance that the evidence is available for trial and was collected legally or is sufficient to justify a trial in the requesting country.277 This certification creates a presumption of reliability, which is in keeping with the principle of comity that underlies all extraditions.278
9.40We have included this approach in our Bill but have added an additional safeguard.279 We consider that the certification needs to acknowledge the requesting country’s duty of candour and good faith.280 We discussed this duty in Chapter 9 of the Issues Paper.281 In short, a requesting country is obliged to reveal any information that it is aware of that could seriously undermine the prosecution case.282 By formally acknowledging this good faith duty through the certification process, our courts can have confidence that the requesting country is aware of it and is acting in compliance with it.

Rules of evidence and admissibility

9.41Our recommended Bill mirrors the Canadian approach to admissibility, as described by the Supreme Court of Canada in The United States of America and Canada v Anekwu.283 In brief, a Record of the Case is admissible if it is properly certified.284
9.42This general proposition is subject to one exception.285 The exception relates solely to evidence gathered in New Zealand. This evidence must be capable, in substance rather than form, of being admissible in evidence in a domestic criminal trial. If it is not, then the evidence is inadmissible in the extradition proceedings and must be excised from the Record of the Case.286 The rationale behind this additional requirement is simple. We want to ensure that evidence gathered in New Zealand complies, in substance, with New Zealand law.287
9.43In practical terms, this means that a Record of the Case may summarise evidence that was gathered in New Zealand, if that evidence is available for the foreign trial. There is no need to present this separately as primary evidence, to comply with the hearsay rules in our Evidence Act 2006.288 If, however, New Zealand-gathered evidence is summarised in this way, the Record of the Case must clearly identify the origins of the evidence. The Court may then consider whether the underlying evidence would comply with New Zealand’s rules of evidence, putting to one side the fact that the evidence has been presented in a summarised form.

Primary evidence

9.44The Bill makes it plain that a requesting country may attach any document it likes to its Record of the Case.289 Nevertheless, the Record of the Case must still contain a summary of the evidence and the certification.290 These requirements cannot be avoided, as they provide requisite clarity and indicia of reliability.
9.45Whether or not to attach the primary evidence is ultimately a decision for the requesting country. However, the Court may advise the Central Authority that, without further information, it will find there is no case to answer.291 This would then give the requesting country a chance to amend the Record of the Case to provide the primary evidence if that was the only way of dealing with the Court’s concerns. For example, if the respondent rebutted the presumption that the Record is reliable, then the requesting country may wish to provide the primary evidence in order to elucidate its case. As the example suggests, we envisage that the requesting country will only provide primary evidence in rare cases. If a practice developed of asking for this evidence more frequently, it would undermine our policy for introducing the Record in the first place.

Supplementing the Record

9.46The Bill clarifies that a Record of the Case may be amended or supplemented at any time and that the Court may require a further certification.292 The Court should, however, only admit an amended or supplementary Record of the Case where doing so creates no unfair prejudice to the person sought.293

Mounting a challenge

9.47Our general understanding is that in Canada, Records of the Case are commonly challenged by:

(a) disputing identification;

(b) applying to excise inadmissible Canadian-gathered evidence;

(c) identifying gaps and/or inconsistencies evident on the face of the Record;

(d) undermining the reliability of key evidence, to the point where it has no evidential value; and

(e) refuting the availability of key evidence for trial in the foreign jurisdiction.294

9.48We envisage that these avenues for challenge would be equally available under our recommended new extradition legislation.

The possibility of respondent evidenceTop

9.49This was a controversial issue during consultation. Some submitters called for respondent evidence to be heavily constrained, to prevent the evidential inquiry from becoming a trial. Other submitters argued that such constraints would make extradition proceedings one-sided and unfair. In our view, the issue can be resolved by relying on the fundamental principle that only relevant evidence is presumptively admissible. To clarify the position we have drafted a provision stating that the Court must consider respondent evidence if it is relevant to the “case to answer” test.295 In practice, scope for such evidence is limited.

9.50The test requires the Court to assess the prosecution case as if it can be proved at trial. In all but the most exceptional circumstances, questions of credibility and weight must be reserved for the finder of fact in the requesting country. Therefore, evidence that offers a defence (for example, alibi evidence) or an alternative interpretation of the Record is not relevant. To be relevant, respondent evidence would need to be capable of proving that crucial evidence in the Record of the Case:

(a) has absolutely no probative value;

(b) was gathered in New Zealand in a way contrary to New Zealand law and should be excised from the Record; or

(c) is not available for trial in the requesting country.

9.51The Canadian case law demonstrates that such circumstances arise very rarely.296

Recommendation

270Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [7.90].
271International Assistance Group “Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition: Extradition – General Overview” Organization of American States <www.oas.org>; and see Government of Canada “Extradition Requests to Canada” Department of Justice <www.justice.gc.ca>.
272Extradition Act SC 1999 c 18, ss 33(1)(b) and (3)(b).
273Issues Paper, above n 270, at [7.45]–[7.48] and [7.88].
274Extradition Bill, cl 25.
275Extradition Bill, cl 14(2)(c).
276Criminal Procedure Act 2011, pt 5, sub-pt 2.
277Extradition Act SC 1999 c 18, s 33(3).
278United States of America v Ferras, above n 259, at 93.
279For the certification requirement, see Extradition Bill, cl 33(2)(f). For the presumption of reliability, see cl 92(3).
280This duty was described by the Privy Council in Knowles v Government of United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35]:
There are many respects in which extradition proceedings must, to be lawful, be fairly conducted. But a requesting state is not under any general duty of disclosure similar to that imposed on a prosecutor in English criminal proceedings. It does, however, owe the court of the requested state a duty of candour and good faith. While it is for the requesting state to decide what evidence it will rely on to seek a committal, it must in pursuance of that duty disclose evidence which destroys or very seriously undermines the evidence on which it relies. It is for the party seeking to resist an order to establish a breach of duty by the requesting state.
This duty was then recognised by the New Zealand Supreme Court in Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [58] and [67] per Elias CJ, [150]–[152] per McGrath and Blanchard JJ, [228]–[238] per William Young J and [264]–[265] per Glazebrook J.
281Issues Paper, above n 270, at [9.30].
282Extradition Bill, cl 33(2)(f)(i). See also cls 33(2)(e) and 112.
283The United States of America and Canada v Anekwu 2009 SCC 41.
284Extradition Bill, cl 92(1)(a).
285The United States of America v Anekwu, above n 283, contains a detailed discussion of how this exception works in practice.
286Extradition Bill, cl 92(2).
287There is overlap here with the process for providing mutual assistance in criminal matters. Under our Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], which we discuss in Part 3 of this Report, a foreign Central Authority will need to provide the New Zealand Central Authority with certain assurances as to the use that information provided under the Bill will be put to in the foreign country: Mutual Assistance Bill, cls 30(1) and 34. For instance, in search and surveillance cases we have proposed that the foreign Central Authority should agree, in advance, to comply with any ruling from a New Zealand court as to the legality or reasonableness of the use of any power; cl 35(1)(b)(vi). In such cases, we would expect the New Zealand Central Authority to advise the requesting country that it should remove the evidence from the Record of the Case, in compliance with their mutual assistance assurance, prior to presenting the Record of the Case to the Court.
288Extradition Bill, cl 92(2) makes it plain that the hearsay rules in the Evidence Act 2006, pt 2, sub-pt 1 do not apply for the purpose of determining whether the New Zealand gathered evidence would, in substance, be admissible in a domestic trial.
289Extradition Bill, cl 33(4).
290Extradition Bill, cl 33(2)(d) and 33(2)(f).
291Extradition Bill, cl 88.
292Extradition Bill, cl 91.
293To clarify this point, cl 91 of the Bill could be amended to include a leave requirement. Although, even as drafted we would expect the Court to adjourn the proceedings and/or to disallow the amendment if there would be undue prejudice to the respondent.
294United States of America v Ferras, above n 259, at 58.
295Extradition Bill, cl 34(6).
296By way of example, see France v Diab 2014 ONCA 374, (2014) 120 OR (3d) 174; United States of America v Anderson 2007 ONCA 84; and United States of America v Mach (2006) 70 WCB (2d) 318 (ONSC).