Contents

Chapter 9
The evidential inquiry

The nature of the inquiry

9.4The current test for the evidential inquiry in the Extradition Act 1999 is based on the historical concept of committing a person for trial. The Court must be satisfied that:247

… the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act,—

(i) in the case of a person accused of an extradition offence, justify the person’s trial if the conduct constituting the offence had occurred in the jurisdiction of New Zealand.

Which offence?

9.5The current test focuses on whether there is sufficient evidence in relation to the New Zealand or treaty offence (the parallel offence) not the foreign offence.248 We recommend that new extradition legislation should retain this approach. We have, however, tried to express this more clearly in the Bill.249

9.6At first glance, this approach may seem counterintuitive as the person will never be put on trial in the requesting country for the parallel offence. The parallel offence, however, is the fundamental reason why New Zealand is willing to entertain an extradition request. There must be either dual criminality or a prior agreement to extradite for that type of offending. This requirement is central to deciding whether there is an extradition offence. It is also central to any assessment of the requesting country’s evidence.

9.7Furthermore, asking the New Zealand courts to routinely identify and apply the legal ingredients of foreign offences would pose practical difficulties. As the Supreme Court of Canada commented in Re McVey:250

… [to] require evidence of foreign law beyond the documents now supplied with the requisition would cripple the operation of extradition proceedings … Flying witnesses in to engage in abstruse debates about legal issues arising in a legal system with which the judge is unfamiliar is a certain recipe for delay and confusion to no useful purpose, particularly if one contemplates the joys of translation and the entirely different structure of foreign systems of law.

9.8We recognise that, for treaty offences, the practical difficulty of identifying the essential elements may still arise, particularly as offences listed in treaties are often expressed in imprecise terms and there may be limited case law on point.251 However, as with all treaties, what is required is for the ordinary meaning to be given to the terms in the treaty in their context and in light of its object and purpose.252 For an example of how this is done in practice see the Court of Appeal’s analysis in Government of United States v Cullinane.253

What evidence?Top

9.9The current test requires the Court to identify the “conduct constituting the [foreign] offence” as described in the requesting country’s evidence.254 In the Bill, we have avoided using this phrase as we do not want the Court to conflate the evidential inquiry with any dual criminality aspect of the extradition offence test.255
9.10We have, however, tried to make it plain in the Bill that in carrying out the evidential inquiry, the Court is not confined to examining the evidence solely as it relates to the elements of the foreign offence. As explained above, the foreign offence is largely irrelevant to this exercise. Instead, the Court is looking at the totality of the conduct as described in the evidence.256
9.11In the second half of this chapter we discuss the evidence in detail. Here it is sufficient to note that we envisage two possible sources for the evidence: a Record of the Case prepared by the requesting country; and, in limited circumstances, evidence presented by the respondent.257 The reason for limiting the Central Authority’s evidence to the Record of the Case (as opposed to the extradition request itself or other documents provided by the requesting country) is that the Record is the only document certifying that the summarised evidence is available for trial, and was gathered in accordance with the requesting country’s law or would justify a trial in that country.

What standard of proof?Top

9.12The current test requires the Court to determine whether there would be sufficient evidence to “justify the person’s trial” if the conduct had occurred in New Zealand. Before the committal proceedings were abolished in 2013, a person’s trial was justified under New Zealand law if there was a prima facie case against them.258

The case for a new test

9.13The prima facie case test is founded in the common law, rather than statute. It is commonly understood as: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”.259 As submitters repeatedly told us, the current test for the evidential inquiry is too complicated: it is not clear on the face of the statute and relies heavily on common law. It is based on the notion of committal for trial, which no longer exists in New Zealand. Moreover, some submitters argued that the standard of proof (that being, a prima facie case) is simply too high.

9.14Our view is that some complexity is unavoidable given the cross-border nature of extradition. We agree, however, that a clearer statutory test is needed that does not rely on the old language of committal.

Assessing the options for a new test

9.15The central component of any new test will be the standard of proof. Throughout the consultation process we discussed various possible phrases and concepts in this regard including: “a prima facie case”, “a case to answer”, “a credible case”, “a plausible case”, “on the balance of probabilities”, “probable cause”, “reasonable suspicion” and “good cause to suspect”.

9.16In developing our recommendation for the appropriate standard, we focused on three main criteria.

9.17First, we wanted to recognise that an extradition proceeding should not be a mini-trial. One of the fundamental principles of extradition is that the determination of guilt or innocence is reserved for the foreign country. For this reason, we were not attracted to the options that require an assessment of the likelihood that the person sought actually committed the offence. These options import a notion of weighing the requesting country’s evidence against defence evidence. All of the proposed tests based on arrest or charging standards (that is: “probable cause”, “reasonable suspicion” and “good cause to suspect”) fall into this category. These standards are appropriate in an investigation setting, where the process of gathering evidence is ongoing. If the preparation of a prosecution case is largely complete and such tests are applied, a mini-trial is unavoidable. That is so, regardless of how low the threshold for certainty might be.

9.18Second, we wanted to ensure that the test would result in a meaningful judicial determination. Put another way, we did not want the standard of proof to be so low that the evidential inquiry would amount to a rubber-stamping exercise. Again, this deterred us from adopting a standard based on suspicion.260

9.19Third, we wanted to use a standard that would be familiar to New Zealand courts and practitioners. Several submitters stressed to us that extradition proceedings are rare. Furthermore, there will only be an evidential inquiry if the request is not from an approved country and relates to an accused, rather than a convicted person. Therefore, a completely new standard could take a long time to bed-in and become properly understood.

9.20These criteria led us to conclude that the best option would be to develop a test based on the standard for dismissing a charge under section 147 of the Criminal Procedure Act 2011, and in particular the phrase “the court is satisfied that there is no case to answer” in section 147(4)(b). This is the test that applies in a judge-alone trial. In an extradition context, however, the onus needs to be reversed as the applicant (that is the Central Authority) should prove that there is an evidential basis for extradition, rather than the respondent proving that the case should be dismissed. Therefore, the test would need to be reframed in the positive, requiring that “the court is satisfied that there is a case for the respondent to answer”.261

9.21We prefer this phraseology to the jury trial formulation, which is: “the Judge is satisfied that, as a matter of law, a properly instructed jury could reasonably convict the defendant”. In relation to extradition, it seems inappropriate to use phrases such as “a properly directed jury” and “as a matter of law”. These phrases may create confusion about which aspects of New Zealand law and procedure should be considered.

9.22We acknowledge that the “no case to answer” test in section 147(4)(b) is a modern statutory formulation of the prima facie case standard. Our view is that this standard is not too high to be replicated in an extradition context. Rather, we consider that the difficulty with the current legislation is that it does not contain sufficient guidance as to how this standard should be applied by the Court in practice.

9.23An additional benefit of the “case to answer” standard we propose is that it broadly aligns with the Canadian test,262 allowing us to continue to call on their jurisprudence as an analogue jurisdiction. This is important given the rarity of standard extradition proceedings in New Zealand and their inherent complexity.

The need to spell out the test in the Bill

9.24While we recommend wording similar to section 147(4)(b), we do not mean to suggest that the Court’s approach should be the same in all respects. We are choosing that wording because it reflects best the standard to which evidence should be judged. We are not choosing that wording to adopt other aspects of section 147. That section was drafted with New Zealand criminal proceedings in mind and could be amended without considering the consequences for extradition.

9.25Additionally, cross-referencing could have unintended consequences. For example, as noted above, under section 147(4)(b) the applicant must show that there is no case to answer. In an extradition context, however, the Central Authority must prove that there is a case to answer. We would not want cross-referencing to cause confusion, or to reverse this onus of proof.

9.26Confusion could also be caused by the court’s power to dismiss a charge for abuse of process under section 147. Case law confirms that the section may be used in this way.263 We are not convinced, however, that it is appropriate for the Court to consider abuse of process arguments during the evidential inquiry in extradition proceedings.264 It is not that these arguments are unimportant in extradition proceedings, but rather that they are better dealt with using extradition-specific mechanisms.
9.27For instance, the Bill we have drafted has universally applicable grounds for refusal that are designed specifically to address abuse of process type arguments.265 These cover issues such as double jeopardy, the impossibility of a future fair trial (for instance through delay or discrimination) and ulterior motive in bringing a prosecution. We do not want cross-referencing to force the courts to examine these issues twice: once in the evidential inquiry, through an ill-equipped domestic lens; and a second time in relation to the grounds for refusal.

Our recommendationTop

9.28For all of these reasons, we recommend a tailor-made test for the evidential inquiry that borrows language from section 147(4)(b) of the Criminal Procedure Act 2011 and the associated case law.

9.29We have included this test in the Bill. The test states that the Court must determine whether there is a case for the respondent to answer in respect of the New Zealand or treaty offence identified in the NIP.266 This makes it plain that the parallel offence, not the foreign offence, is the one that matters for the purpose of the evidential inquiry. Furthermore, the Central Authority is responsible for identifying the parallel offence and must keep the NIP up to date throughout the proceedings.267
9.30We have also included a definition of “a case to answer” in our Bill based on the common law principles that have developed around section 147(4)(b) of the Criminal Procedure Act and its predecessors. We did so to ensure that the test is, and remains, appropriate in an extradition context. We have attempted to translate the case law into appropriate statutory language that will be familiar to New Zealand practitioners. That is why the Bill refers to the existence of evidence that “if accepted as accurate at the respondent’s trial, would establish each essential element” of the offence identified in the NIP.268 In line with the case law, we clarify further that the extradition judge should “disregard only evidence that is so unreliable that it could not have any probative value”.269

Recommendation

247Extradition Act 1999, s 24(2)(d)(i).
248Re McVey [1992] 3 SCR 475 at 526; and Norris v Government of the United States of America [2008] UKHL 16 at [89].
249The Bill requires the Central Authority to identify the equivalent New Zealand or treaty offence in the notice of intention to proceed (NIP): Extradition Bill cl 18(2)(g). The Court must then determine whether there is a case for the respondent to answer in relation to the offence identified in the NIP under cl 24(3)(b), based on the evidence contained in the Record of the Case. The former is written by the New Zealand Central Authority as it is the charging sheet; the Record of the Case by the requesting country as it summarises the evidence against the person sought.
250Re McVey, above n 248.
251The Imperial treaties commonly include the following offences: “Any malicious act done with intent to endanger the safety of any person travelling or being upon a railway”; “malicious injury to property if such an offence be indictable”, “child-stealing” and “threats by letter or otherwise with intent to extort money”: for example, the treaties with Argentina, Belgium and Greece: see list of treaties in the schedule to the Extradition Bill, at ch 16 of this Report.
252Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened for signature 23 May 1969, entered into force 27 January 1980), art 31(1).
253Government of United States v Cullinane [2003] 2 NZLR 1 (CA) at [74]–[77] and [82]–[91].
254Extradition Act 1999, s 4(2).
255See the discussion of the extradition offence test in ch 6 and in the commentary to cls 7–8 of the Extradition Bill in pt 4.
256Extradition Bill, cl 34(5).
257Extradition Bill, cl 33(1) and 34(6).
258Summary Proceedings Act 1957, s 184G (repealed); and Auckland City Council v Jenkins [1981] 2 NZLR 363.
259In an extradition context, see United States of America v Ferras [2006] 2 SCR 77 at 85 citing this aspect of United States of America v Shepard [1977] 2 SCR 1067 at 1080 with approval. In a New Zealand context, see R v Flyger [2001] 2 NZLR 721 (CA), as explained in Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [14], which has now been encapsulated in statute in s 147(4)(c) of the Criminal Procedure Act 2011.
260In the United States they use the “probable cause” standard and then apply a rule that the defence cannot produce any evidence. This combination creates a threshold that, to our minds, seems too low.
261Extradition Bill, cl 34(4)(c).
262Extradition Act SC 1999 c 18, s 29(1)(a).
263Spratt v Savea DC Christchurch CRI-2014-009-1492, 29 April 2014.
264This occurred under the current Extradition Act 1999. The Court of Appeal was called on to determine whether abuse of process arguments could be raised during the evidential inquiry given the cross-referencing to committal proceedings. It found that there was limited scope for such arguments but noted the extensive overlap with other provisions in extradition legislation: see Bujak v Republic of Poland [2007] NZCA 392, [2008] 2 NZLR 604.
265Extradition Bill, cl 20.
266Extradition Bill, cl 34(4)(c) and 34(5).
267Extradition Bill, cls 26(2)(g)–(h) and 90.
268Extradition Bill, cl 34(5)(b).
269Extradition Bill, cl 34(5)(a). See also the Canadian approach of excluding “manifestly unreliable” evidence as discussed by the Supreme Court of Canada in United States of America v Ferras, above n 259, at [40].