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Last Updated: 29 January 2018
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NOTE: THE SUPPRESSION ORDER MADE IN THE DISTRICT COURT IN RELATION TO THE CONTENTS OF THE UNITED STATES' RECORD OF THE CASE REMAINS IN EFFECT
IN THE COURT OF APPEAL OF NEW ZEALAND
CA526/2012 [2013] NZCA 38
BETWEEN THE UNITED STATES OF AMERICA Appellant
AND KIM DOTCOM, FINN BATATO, MATHIAS ORTMANN AND BRAM VAN DER KOLK
First Respondents
AND THE DISTRICT COURT AT NORTH SHORE
Second Respondent
Hearing: 20 September 2012
Court: Arnold, Ellen France and French JJ Counsel: J C Pike and F Sinclair for Appellant
P J Davison QC, W Akel and R C Woods for Mr Dotcom
G J Foley for Messrs Batato, Ortmann and Van der Kolk
Judgment: 1 March 2013 at 3 pm
JUDGMENT OF THE COURT
B The cross-appeal is dismissed.
USA V DOTCOM & ORS COA CA526/2012 [1 March 2013]
REASONS OF THE COURT
(Given by Arnold J)
Table of Contents
Para No Introduction [1] Allegations against Megaupload and Mr Dotcom [6] Extradition
Background [12]
Extradition Act 1999 [16]
(a) The relationship between the Act and a relevant extradition
treaty [19] (b) Protection of human rights [22] (c) Different extradition processes [27] (i) Endorsed warrant process: Part 4 [28]
(ii) Commonwealth and treaty countries: Part 3 [30] (iii) Non-Commonwealth, non-treaty countries: Part 5 [36] Background to record of the case procedure [37] Nature of extradition proceedings [40]
The judgments below [46] (a) District Court [46] (b) High Court [48]
Evaluation [49] The NZ/US Treaty [50] The Act [65] (a) Section 25 [82] (b) Section 24 [97] Drawing the threads together [104] Relief [110]
Decision [114]
Introduction
[1] This case raises an important point concerning the extent of disclosure that a court may order a requesting state to provide in advance of a particular form of extradition hearing. The background is that the appellant, the United States of America, seeks to extradite Mr Dotcom and the remaining first respondents (whom we will refer to simply as Mr Dotcom for ease of reference) to face charges arising out of their involvement in a group of companies known as the Megaupload companies (Megaupload). The essential allegation is that Megaupload, for the purpose of commercial advantage or private financial gain, provided internet-based storage facilities to users and allowed them to use those facilities to share files in
breach of copyright. Megaupload and Mr Dotcom are alleged to have committed
criminal breaches of copyright in respect of
films, television shows,
music, electronic books, video games and other computer software. They are also
alleged to have been
involved in money laundering, racketeering and wire fraud,
although these offences flow from the copyright charges.
[2] Prior to the extradition hearing, which is yet to be held, Mr
Dotcom sought disclosure of various categories of documents
from the United
States prosecuting authorities. Judge Harvey ordered disclosure.1
(For ease of reference, the orders are set out in Appendix A to this
judgment.) As can be seen, the orders are structured in terms
of the
ingredients of the offences alleged and are widely drawn. For example, order
1(b)(i) refers to documents “connected
to, related to or evidencing
alleged infringement of the copyright interests”.
[3] The United States brought an application for judicial
review of Judge Harvey’s decision, which Winkelmann
J dismissed.2
The United States now appeals from Winkelmann J’s decision.
Although Mr Dotcom generally supports Winkelmann J’s reasoning,
he has
filed a cross-appeal in relation to her finding that an oral evidence order is
required before a witness may be called at
an extradition hearing and seeks to
support her judgment on other grounds.
[4] The Extradition Act 1999 (the Act) recognises different
categories of jurisdiction, each with different requirements
for extradition.
The United States is a jurisdiction to which pt 3 of the Act applies. It is an
exempted country, which enables
it to follow an extradition process that is
simpler than that which must be followed by non-exempted jurisdictions. Where
it brings
an extradition application, the United States is entitled to present a
record of the case to the court hearing the application (the
extradition court).
In essence, the record of the case is a summary of the evidence against the
person sought to be extradited.
[5] We have concluded, contrary to the views of the Courts below, that
the exempted country regime under the Act does not contemplate
disclosure on the
basis
1 Dotcom v United States of America [2012] DCR 661.
2 United States of America v Dotcom [2012] NZHC 2076.
ordered. Accordingly, the appeal will be allowed. The cross-appeal will
be dismissed.
Allegations against Megaupload and Mr Dotcom
[6] The United States’ record of the case (including the
supplementary record) is
109 pages in length and summarises the significant evidence that the United
States intends to lead at the trial of Megaupload and
Mr Dotcom. The detail of
the record of the case is subject to a suppression order made by Judge Harvey,
which continues in force.
The following account of the factual background is
accordingly brief.
[7] Megaupload offered internet-based storage facilities for
electronic files, which users of the service could share.
It operated through
servers located in a number of different countries. According to the record of
the case, Megaupload presented
itself as a “cyberlocker”, that is, a
private data storage provider. Megaupload allowed access for three broad
categories
of users: unregistered, non- paying, anonymous users; registered,
non-paying users; and registered, paying, premium users. It
is alleged
that Megaupload offered financial incentives to premium subscribers to
upload popular files, so that a premium
subscriber who uploaded such material
would receive payments based on the number of downloads of the stored material.
Specific examples
are referred to in support of this allegation.
[8] From an analysis of databases found on Megaupload’s servers,
the United States alleges that a small proportion (slightly
over one per cent)
of Megaupload’s subscribers were premium subscribers; the remainder,
it says, did not have significant
capability to store content long-term.
Further, it says that less than nine per cent of Megaupload’s subscribers
had ever
uploaded material. It argues that this data indicates that most users
accessed Megaupload in order to view and download content.
It says that most of
the uploaded files were infringing copies of copyrighted works and alleges that
Megaupload “purposefully
made their rapid and repeated distribution a
primary focus of their infrastructure”.
[9] The Digital Millennium Copyright Act was enacted in 1998 to provide internet service providers with a “safe harbour” from civil copyright suits (but not
criminal proceedings) in the United States if they meet certain
criteria.3 The United States says that Megaupload provided an
“abuse tool” to major copyright holders, which was supposed to
enable
copyright holders to remove infringing material from Megaupload’s
servers but which did not work as copyright holders understood
it would work.
In particular, it did not disable access to the infringing material other than
to a limited, and therefore ineffectual,
extent.
[10] This is a much abbreviated summary. It will be clear, however,
that the United States’ case against Megaupload and
Mr Dotcom is largely
circumstantial. Moreover, it is strongly contested. For Mr Dotcom, Mr Davison
QC noted that the United States’
case is based on its interpretation of
Megaupload’s business model: the reward programme, the abuse tool and so
on. He said
that Mr Dotcom wished to challenge the United States’
interpretation of the business model at the extradition hearing in order
to
demonstrate that the inferences that the United States seeks to draw are
unfounded. In relation to the abuse tool for example,
Mr Davison acknowledged
that it was correctly described in the record of the case but said that when the
reasons behind it were explained,
Mr Dotcom could show that it was not part of
an unlawful conspiracy. Presumably an extradition hearing of some weeks is
anticipated.
[11] There are two further features that we should note by way of
background:
(a) An Assistant United States Attorney, Mr Jay V Prabhu, filed an affidavit in the High Court outlining the law applicable to disclosure in criminal proceedings in the United States. He deposed that disclosure generally occurs after the defendant’s first appearance in court. Disclosure will not be ordered until the defendant has submitted to the jurisdiction of the United States’ courts. Further, disclosure will not be made to a lawyer who has not entered an appearance in the judicial district where the case is to be tried. This is
to enforce ethical obligations. In addition, disclosure obligations
are
3 17 USC § 512. For a helpful discussion, see Raphael Gutierrez “Save the Slip for the Service Providers: Courts Should Not Give Short Shrift to the Safe Harbors of the Digital Millennium Copyright Act” (2002) 36 USFL Rev 907.
reciprocal. Mr Prabhu said that Mr Dotcom already has access to a
significant amount of discovery material. He deposed:
For example, the defendants have already obtained a copy of the databases
supporting the Mega Sites, which includes a full index of
the files uploaded
onto the Mega Sites’ servers around the world, including the name, type,
and number of views or downloads,
in addition to information about users of the
Mega Sites. Furthermore, the defendants have access to their own financial and
banking
records, as well as their own electronic mail (“e-mail”)
accounts, which contain millions of relevant emails. Many
of these materials
are available online at no cost to either party.
(b) There is no affidavit material before us explaining what particular
difficulty Mr Dotcom says he will face if extensive
disclosure is not
provided.4 Rather, the case has been argued at the level of
principle.
Extradition
Background
[12] Extradition processes are recognised to be an important aspect of
the comity of nations. Nations have an interest in ensuring
that persons within
their jurisdiction who are accused of criminal offences in another state are
surrendered in order to answer those
allegations in that state. Equally,
however, states committed to the rule of law have an interest in ensuring that
persons they
surrender will not face injustice or oppression in the
requesting state.5 Extradition processes must take proper
account of both of these important values.
[13] The following extract from the explanatory note to the Extradition
Bill 1998 accurately stated the position:6
The modern law of extradition is founded on a number of principles:
It is in the interests of all states that crimes
acknowledged to be such do not go unpunished.
5 Knowles v Government of the United States [2006] UKPC 38, [2007] 1 WLR 47 at [12].
6 Extradition Bill 1998 (146-1) (explanatory note) at ii.
It is part of the comity of nations that one state should
afford to another every assistance towards bringing persons guilty of
such
crimes to justice.
It is also necessary to ensure that the basic human rights
of the person sought are adequately protected. There is considerable
hardship
if an innocent person is sent to stand trial in another state, particularly when
the requesting state is not that person’s
usual state of
residence.
Extradition law therefore attempts to strike an appropriate balance between
the aspirations of the international community in wanting
to limit havens for
lawbreakers and the legitimate expectations of persons accused or convicted of
crimes that they will be dealt
with humanely and in accordance with
law.
[14] The explanatory note went on to say that there had been pressure on
states to change domestic laws to reflect the realities
of the late 20th century
and to adopt more uniform laws and practices.7 It noted that
extradition was increasingly seen as an important law enforcement tool and that
there was likely to be an increase in
the number of extradition requests as
transnational crime became more common.8
[15] At an international level, extradition is dealt with in multi- or
bi-lateral guidelines, conventions or treaties.9 In particular,
there is an extradition treaty between the United States and New Zealand.10
At a national level, extradition is generally subject to specific
legislation, as in New Zealand.
Extradition Act 1999
[16] Prior to the passing of the Act, extradition law in New Zealand was found in the Fugitive Offenders Act 1881 (UK), which dealt with extradition to Commonwealth countries, and the Extradition Act 1965, which dealt with extradition to non-Commonwealth countries. When the Foreign Affairs, Defence and Trade
Committee reported back on the Extradition Bill 1998, it
said:11
7 At ii.
8 At iii.
9 For example, European Convention on Extradition 1957, Convention relating to Extradition between Member States of the European Union 1996 and Model Treaty on Extradition GA Res
45/116, A/Res/45/116 (1990).
10 Treaty on Extradition between New Zealand and the United States of America [1970] NZTS 7 (signed 12 January 1970, entered into force 8 December 1970) (NZ/US Treaty). The text of the Treaty is also set out in sch 1 of the Extradition (United States of America) Order 1970.
11 Extradition Bill 1998 (146-2) (select committee report) at i.
The primary aim of the new legislation is to modernise New Zealand
extradition law by rationalising the existing extradition regimes
and by
incorporating various changes in extradition practice that have gained
international acceptance in recent years.
[17] Various features of the Act provide a background to the analysis of
the central issue in this case. Before addressing them,
however, we note that
it is agreed that Mr Dotcom is an “extraditable person” in terms of
s 3 of the Act. That is, he
is a person who has been accused of having
committed an “extradition offence”12 against the law of
an “extradition country”,13 namely the United
States.
[18] We also make a further preliminary point. In the course of our judgment we will refer to authorities from other jurisdictions, in particular Canada and the United Kingdom. Considerable care must be taken with the use of such authorities, however, as the relevant legislative schemes differ in significant respects from the New Zealand scheme. For example, in the United Kingdom the Extradition Act 2003 (the 2003 UK Act) effected radical changes to the law of extradition, in part to give effect to arrangements between members of the European Union. Apart from countries falling within those arrangements, the Act recognises two classes of country – those that are not required to demonstrate that there is a prima facie case
against the person sought and those that are required to demonstrate such a
case.14
As a consequence, statements from overseas authorities must be seen in their
proper context. Obviously, our ultimate responsibility
is to interpret the Act,
albeit that we must do so in its international setting.
(a) The relationship between the Act and a relevant extradition
treaty
[19] There is a well-established presumption of statutory interpretation that legislation should be read in a way that is consistent with New Zealand’s international obligations, at least to the extent that its wording permits.15 The Act
goes further than this, however. Section 11 provides:
13 Section 2.
2003 Act.
15 New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at
289.
If there is an extradition treaty in force between New Zealand and an
extradition country, the provisions of this Act must be construed
to give effect
to the treaty.
Delivering the judgment of this Court in Yuen Kwok-Fung v Hong Kong
Special Administrative Region of the People’s Republic of China, Keith
J described s 11(1) as giving “a very strong direction”.16
He later described the process that s 11 requires as
“reconstruction of the Act, to the extent it is inconsistent with the
treaty, to make it consistent.”17 This feature distinguishes
the Act from other legislation to which the usual presumption applies and
demonstrates the importance which
Parliament attached to New Zealand’s
international obligations in the extradition context.
[20] There are limits, however. Section 11(2) goes on to qualify s
11(1) by providing that no treaty may be construed to
override specified
provisions in the Act or “[a]ny provision conferring a particular function
or power on the Minister or a
court”.
[21] Section 12 identifies the object of the Act, which includes enabling New Zealand to carry out its obligations under extradition treaties.18 As we have said, there is an extradition treaty between the United States and New Zealand.19
There are three articles in it which may bear upon the issue before us
– arts 4, 9 and
12. We set out the text of these articles at [50] below.
(b) Protection of human rights
[22] In accordance with the need to protect important human rights and
similar values, the Act provides for mandatory and discretionary
restrictions on
surrender:
(a) Mandatory restrictions on surrender are found in s 7. Surrender is
prohibited where, for example, the offence for which
a person
is
16 Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China
[2001] NZCA 174; [2001] 3 NZLR 463 (CA) at [15].
17 At [16].
18 Section 12(a).
19 See NZ/US Treaty, above n 10.
sought is “of a political character”,20 or a
person’s surrender is sought so that he or she may be prosecuted or
punished on account of “race, ethnic origin,
religion, nationality, sex,
or other status, or political opinions”.21
(b) Discretionary restrictions on surrender are found in s 8. They
include matters such as the trivial nature of the case against
the person
sought,22 the fact that the allegations against the person are not
made in good faith in the interests of justice and the length of time since
the
alleged offence was committed.23
[23] In this context we should also mention two other features of
extradition law which may provide a measure of protection for
those who are
sought for extradition.
[24] The first is what is generally referred to as the double criminality requirement. That requirement is that the offence for which the requesting country seeks to extradite the person must be such as to constitute an offence in New Zealand had the relevant conduct occurred in New Zealand. That is, the conduct at issue must constitute an offence under the law of both the requesting and requested states.24 The double criminality requirement rests partly on the concept of reciprocity, which underlies the law of extradition, and partly on the principle of legality, which protects people from punishment where their conduct does not breach the law.25 The definition of “extradition offence” in s 4 of the Act contains the
double criminality principle.26 However, s 4 is subject to any
relevant extradition
treaty. As this Court discussed in United States of
America v Cullinane, the
20 Section 7(a).
21 Section 7(b) and (c).
22 Section 8(1)(a).
23 Section 8(1)(b) and (c).
the law of the extradition country”: Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZSC 121 at [14] per McGrath J (giving the judgment of Elias CJ, himself and Glazebrook J).
25 I A Shearer Extradition in International Law (Manchester University Press, 1971) at 137.
26 See s 4(2).
extradition treaty between New Zealand and the United States lists the
offences to which it applies and does not contain a double
criminality
requirement.27
[25] The second element is what is known as the principle of specialty (or
speciality).28 This is the requirement that a person who is to be
extradited may only be tried for the crime for which he is extradited. This is
provided for in s 30(5) of the Act, albeit in significantly modified
form.
[26] Besides these protections, there are procedural protections, which
we will discuss when we come to the central issue in the
case.
(c) Different extradition processes
[27] In terms of the way in which extradition requests may be
made and considered, the Act recognises three broad
categories of country: (a)
Australia and several other countries that have been designated by
Order-in-Council, which are entitled
to utilise the endorsed warrant process
under pt 4; (b) Commonwealth countries and countries with which New Zealand has
an applicable
extradition treaty,29 which fall within the processes
set out in pt 3; and (c) other countries, which fall under pt 5.
(i) Endorsed warrant process: Part 4
[28] The process that places the least demands on the requesting state is the endorsed warrant process set out in pt 4 of the Act. It is a fast, simplified process applying to extradition requests from Australia and other jurisdictions designated by Order-in-Council (presently, the United Kingdom, Pitcairn and the Cook Islands). Where a warrant for the arrest of a person has been issued by a person having
authority to do so in the requesting country, it can be endorsed by a
District Court
27 United States of America v Cullinane [2003] 2 NZLR 1 (CA) at [49]–[67]. See art 2 of the
NZ/US Treaty.
28 Clive Nicholls, Clare Montgomery and Julian Knowles The Law of Extradition and Mutual
Assistance (2nd ed, Oxford University Press, 2007) at [5.77].
29 In relation to non-Commonwealth countries the offence at issue must be one covered by the extradition treaty. If it is not, Part 5 will apply: see s 60(1)(a)(ii). Section 16 allows for non- Commonwealth, non-treaty countries to be brought within Part 3 (other than through Part 5), but this provision does not appear to have been utilised to date.
Judge in New Zealand.30 Once endorsed, the warrant provides
authority for the
Police to execute it.
[29] When arrested, the person must be brought before a court, which must determine his or her eligibility for surrender.31 Essentially, the court must order extradition if the endorsed warrant is produced and the court is satisfied that the person is an extraditable person, and the offence is an extraditable offence, in relation to an extradition country. The court may, however, find that the person is not eligible for surrender where that person satisfies the court that (a) a mandatory
restriction applies; (b) extradition would not be in accordance with an
extradition treaty between New Zealand and the requesting
country; or
(c) a discretionary restriction applies. Importantly, inquiry into the
evidence against the person is specifically
precluded.32 Where
the court is satisfied that the person is eligible for surrender, it must order
the person’s detention, preparatory to
surrender.33 The court
may, however, refer a case to the Minister for final decision in certain
limited circumstances.34
(ii) Commonwealth and treaty countries: Part 3
[30] The more usual process, contained in pt 3 of the Act, involves substantive decision-making by both the executive and the courts. Under s 18(1), a country such as the United States seeking extradition must transmit its request to the Minister of Justice. The request must be accompanied by “duly authenticated supporting documents”.35 In relation to a person sought for trial, this simply means an arrest warrant issued by a person having authority to issue it in the requesting country and a written disposition setting out a description of the offence, the penalty applicable to it and the conduct constituting the offence.36 The Minister may (not must) then request a District Court judge to issue a warrant for the arrest of the person sought to
be extradited. The District Court judge may issue the warrant if
satisfied that: (a) the
30 Section 41.
31 Section 45.
32 Section 45(5).
33 Sections 46 and 47.
34 Sections 48 and 49.
35 Section 18(3).
36 Section 18(4).
person is, or is suspected of being, in or on his or her way to New Zealand; and (b) there are reasonable grounds to believe that the person is an extraditable person in relation to the requesting country and the offence is an extradition offence.37
Following arrest, the person must be brought before a court as soon as
possible.38
[31] There are three provisions that are particularly important to the
arguments in this case: s 22, which sets out the powers
of the court; s 24,
which deals with the court’s determination of whether a person is eligible
for surrender; and s 25, which
deals with the record of the case procedure. For
ease of reference, we have set these provisions out in Appendix B to this
judgment.
[32] We will leave detailed discussion of these sections until our
discussion of the substantive issues. For present purposes
it is sufficient to
note three things. First, the United States has been designated as a country
entitled to use the record of the
case procedure.39 Second, s 25(2)
sets out what the record of the case must contain. It provides:
A record of the case must be prepared by an investigating authority or a
prosecutor in an exempted country and must contain–
(a) a summary of the evidence acquired to support the request for the
surrender of the person; and
(b) other relevant documents, including photographs and copies of
documents.
[33] In the judgment under appeal, Winkelmann J held that s 25(2)(b)
meant that the record of the case had to include not simply
a summary of the
evidence relied upon but also the documents which provided the basis for the
summary or which were referred to in
the summary, whether directly or
indirectly.40 The United States challenges that
interpretation.
[34] Third, s 24(2)(d) requires that, before a court may determine that a person is eligible for surrender, it must be satisfied that the evidence given or produced at the
extradition hearing would, under New Zealand law, justify the
suspect’s trial if the
37 Section 19.
38 Section 23(1).
39 Extradition (Exempted Country: United States of America) Order 1999.
40 At [111].
relevant conduct had occurred in New Zealand. In other words, the court must
be satisfied that there is a prima facie case against
the suspect.
[35] If the court determines that a person is eligible for extradition under pt 3, it must issue a warrant for detention.41 The Minister must then determine whether the person is to be surrendered.42 The Minister must refuse surrender if, for example, one of the mandatory restrictions on surrender applies or the Minister considers that there are substantial grounds for believing that the person may be subject to torture
in the requesting country and may refuse surrender on other
grounds.43 If the
Minister determines that the person should be surrendered, he or she then
makes a surrender order.44 If the determination is that the person
should not be surrendered, the person must be discharged from custody
forthwith.45
(iii) Non-Commonwealth, non-treaty countries: Part 5
[36] Section 60 of the Act provides for the extension of the Act to individual extradition requests from countries which are not members of the Commonwealth and with which New Zealand does not have an applicable extradition treaty. China is an example of such a country. The decision whether a request is to be dealt with under the Act is made by the Minister. If the Minister decides that the Act should be
extended, the procedures set out in pt 3 will become
applicable.46
Background to record of the case procedure
[37] The record of the case procedure was introduced when the Act came into force in 1999. In adopting this procedure, New Zealand accepted a proposal that had been developed in Canada and adopted in its extradition legislation of the same year
(the 1999 Canadian Act).47
41 Section 26(1).
42 Section 30(1).
43 Section 30(2) and (3).
44 Section 31.
45 Section 35.
46 This form or extradition process was at issue in Kim, above n 24.
47 Extradition Act SC 1999 c 18, ss 32 and 33.
[38] Both the Canadian and New Zealand Acts followed discussions between law Ministers of various Commonwealth countries in the 1980s. It appears that throughout the 1980s, efforts were being made at an international level to modernise extradition laws to accommodate the global nature of crime and changes in offending. A particular problem was that civilian states found it difficult to prepare a prima facie case based upon affidavits that met the requirements of common law countries. In United States v Yang Rosenberg JA described the genesis of the 1999
Canadian Act as follows:48
[28] The scheme in the new Extradition Act originates in
negotiations between law ministers of the Commonwealth. In 1986, the Government
of Australia proposed the abolition
of the prima facie test within the
Commonwealth scheme for rendition. Canada, in particular, was opposed to this
suggestion, which would have abolished
any judicial assessment of the
sufficiency of the request. Accordingly, in 1989 at a meeting
in New Zealand, Canada
proposed that the prima facie test be retained but
that the requesting state could rely upon a record of the case. The record of
the case would contain a recital
of the evidence. Thus, there would be no
requirement for affidavits containing first-hand accounts. Further, the recital
of evidence
could be based upon evidence admissible in the requesting state and
not necessarily admissible in the requested state. This proposal
would bring
the Commonwealth more in line with the scheme for extradition as set out in
the European Convention on Extradition and the United Nations
Model Treaty on Extradition. The law officers of the
Commonwealth adopted Canada’s proposal.
[29] Another important consideration for Canada was its obligation to
cooperate with the United Nations Tribunals, which
oversee trials of
war crimes and crimes against humanity in the former Yugoslavia and in Rwanda.
These tribunals designed their
own evidentiary and procedural rules that
borrowed from both the common law and civilian systems. In particular, hearsay
evidence
is admissible at the trials in these tribunals.
[39] Mr Davison submitted that the essential reason for the record of the case procedure was to deal with the difficulties faced by civilian countries in preparing cases in a way that conformed to the requirements of common law jurisdictions, particularly as to affidavits. Certainly, that seems to have been an important consideration. But as Anne Warner La Forest explains, there were other considerations, including the need to facilitate extradition by international tribunals and a desire to modernise and harmonise extradition law so as to make it more
workable generally.49
48 United States v Yang (2001) 203 DLR (4th) 337 (ONCA).
49 Anne Warner La Forest “The Balance Between Liberty and Comity in the Evidentiary
requirements Applicable to Extradition Hearings” (2002) QLJ 95 at 132–140.
Nature of extradition proceedings
[40] Finally, we should say something about the nature of extradition
proceedings, in particular, the extent to which the protections
in the New
Zealand Bill of Rights Act 1990 (NZBORA) apply to them.
[41] Although the extradition process is an important element of the system of criminal justice, it is wrong to equate it with the criminal trial process. McLachlin J (speaking for the majority of the Supreme Court of Canada) made this point in Kindler v Canada (Minister of Justice),50 a decision under the pre-1999 Canadian extradition legislation. It was repeated by the Supreme Court in United States v Dynar51 and, more importantly (because the 1999 Canadian Act applied), in United States of America v Anekwu.52 Because extradition proceedings are not concerned with issues of guilt or innocence, all the NZBORA protections that would apply in a criminal trial are not automatically applicable in an extradition hearing.
However, as the parties agreed, NZBORA clearly does have some application in
respect of extradition proceedings. In particular, it
was not disputed that s
27 (the right to justice) applies.
[42] Similarly in the United Kingdom. Lord Phillips of Worth Matravers CJ, delivering the judgment of the Court in R (Government of United States of America) v Bow Street Magistrates’ Court,53 said that extradition proceedings are criminal proceedings “albeit of a very special kind” and that the extradition judge “should apply the normal rules of criminal evidence and procedure to the extent that these are appropriate having regard to the specifics of the statutory schemes ...”.54 The qualification was particularly important in that case as the requesting country, the United States of America, was not required to show a prima facie case in order to
justify extradition.55
50 Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 at 844–845.
51 United States v Dynar [1997] 2 SCR 462 at [129].
52 United States of America v Anekwu 2009 SCC 41, [2009] 3 SCR 3 at [27].
53 Bow Street Magistrates’ Court, above n 14.
54 At [76] (emphasis added).
55 See Nicholls, Montgomery and Knowles, above n 28, at [6.36]–[6.38].
[43] In Pomiechowski v District Court in Legnica, Poland the
Supreme Court said that an extradition application “does not involve the
determination of a criminal charge, and [the suspect]
is not entitled to any
full process of examination of his guilt or innocence, or to the procedural
guarantees which would attend
that”.56 However, the Court
went on to say (in respect of a UK citizen whose extradition was sought by the
United States) that the suspect
was entitled “to a fair determination as
to his common law right to remain within the
jurisdiction”.57
[44] In United States of America v Ferras, a decision we discuss
in more detail below, the Supreme Court of Canada made it clear that under the
1999 Canadian Act a judge considering
an extradition application had a
substantive role to play – he or she was not simply a “rubber
stamp”.58 Judicial evaluation was a critical element of the
fair process to which the person whose extradition was sought was entitled.
This
raises a question to which we shall return, namely, what material is
sufficient for this purpose.
[45] Ultimately, the nature of the extradition process and the extent to which it engages NZBORA protections depends upon the interpretation of the Act in its international context. Mr Davison argued that ss 24 and 25 of the NZBORA apply to individuals charged in another jurisdiction whose extradition is sought. However, as Winkelmann J accepted, ss 24 and 25 do not, on their wording, apply in the
extradition context.59 They are focussed on persons facing charges in New Zealand.
But it is indisputable that the Act seeks to protect the rights of persons
whose extradition is sought in a variety of
ways.
56 Pomiechowski v District Court in Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604 at
[32].
57 Ibid.
58 United States of America v Ferras [2006] 2 SCR 77 at [25].
59 At [55].
The judgments below
(a) District Court
[46] We will not attempt to provide a detailed summary of Judge
Harvey’s lengthy decision. We simply note two points.
First, the Judge
considered that, in order to have a fair hearing, Mr Dotcom was entitled to
disclosure. He said:
[230] ... As I understand it all of his information and records
were contained on computers or on servers which
were removed from his
premises or his control as the result of the actions of the New Zealand Police
and the United States Authorities
in other countries in January 2012. He
simply does not have access to information that may assist him in
preparation
for trial. As I have said, this information is in the hands of
prosecuting authorities and at the moment is denied him.
[231] A denial of the provision of information that could enable a proper
adversarial hearing in my view would amount to a denial
of the opportunity to
contest and that would effectively mean that the process is one sided and in
reality becomes more of an
administrative one based on limited
information provided the Court by virtue of the [record of the case].
Effectively by its
own actions the United States is saying that there can be no
other evidence than the [record of the case] that the Court can take
into
account, and it can say this with some confidence, given that all or any of the
evidence upon which Mr Dotcom might wish to
rely is in the hands of the United
States or investigative authorities acting at their behest in
New Zealand.
The Judge went on to say that the failure to provide the relevant documents
meant that the record of the case did not meet the requirements
of s 25(2)(b)
and this supported the case for disclosure.60
[47] Second, Judge Harvey noted that the record of the case procedure gave the requesting state a significant advantage in the extradition process and said this should be balanced by allowing Mr Dotcom the opportunity to access information
that might assist him to contest the
allegations.61
60 At [232].
61 At [235].
(b) High Court
[48] In her judgment on the judicial review application, Winkelmann J
identified three issues, namely the approach to the construction
of the Act and
the application of NZBORA, the issue for an extradition judge under s
25(2)(d)(i) of the Act and the right to, and
extent of, disclosure.62
The Judge summarised her conclusions as follows:
[119] To conclude:
1. The Extradition Act is to be construed in the light of its
purpose, the extradition treaty between the United States and
New Zealand, and
also in the light of the provisions of [the] Bill of Rights Act.
2. The person sought is entitled to the procedural rights
protected by s 27 of the Bill of Rights Act to ensure that
he or she has a fair
hearing. The purpose of the extradition hearing is to decide whether the
threshold established for extradition
in s 24(2)(d)(i) is met. Therefore,
those procedural rights are not of a scale that would be afforded in a full
hearing (trial)
to determine whether a charge is proved. There is nothing in the
[record of the case] provisions procedure which alters the s 24(2)(d)(i)
threshold, or which further constrains the procedural rights of the person
sought in relation to that hearing beyond any constraints
which are explicit in
the Extradition Act.
3. The person sought is entitled to adduce evidence which is relevant
to that narrow issue. Consistent with the need to
ensure that the extradition
process is expeditious, the extradition Judge will ensure that only evidence
relevant to that issue is
produced. The oral evidence application in the
Summary Proceedings Act provides a useful procedure for this purpose.
4. Without disclosure the person sought will be significantly
constrained in his or her ability to participate in the hearing,
and the
requesting state will have a significant advantage in terms of access to
information.
5. The extradition court does have jurisdiction to
order disclosure to ensure a fair hearing because it has
all the powers and
jurisdiction of a court conducting a committal hearing. Because the applicant
is a party to the proceeding, orders
for disclosure does not involve the
District Court making orders with extraterritorial affect.
62 At [32].
6. The provision of disclosure does not undermine the [record of the
case] procedure. Nor is it inconsistent with
the conduct of an
expeditious and focused extradition hearing. The hearing can be kept within its
proper bounds by controlling the
evidence that is allowed to be called. To
attempt to control it by severely constraining the information available to the
person
sought is to use a very blunt instrument and risks an unfair
hearing.
7. The person sought does not have to establish that any
potential challenge to the application for extradition has
an "air of reality"
before he or she will be entitled to disclosure.
8. Disclosure should be of documents relevant to the
extradition phase. The Judge structured the disclosure
ordered around the
elements of the offences alleged against the first respondents. He did not
therefore exceed the proper scope
of disclosure for the extradition
hearing.
Evaluation
[49] We will begin our evaluation with the extradition treaty
between the United States and New Zealand, given the paramountcy
accorded to it
by the Act. We will then turn to the terms of the Act.
The NZ/US Treaty
[50] As we have said, there are three provisions in the treaty which may
bear upon the issue before us, namely arts 4, 9 and 12.
Article 4
provides:
Extradition shall be granted only if the evidence be found sufficient,
according to the laws of the place where the person sought
shall be found,
either to justify his committal for trial if the offence of which he is accused
had been committed in that place
or to prove that he is the person convicted by
the courts of the requesting Party.
Article 9 provides:
The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the laws of the requested Party and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by such law.
Article 12 provides:
If the requested Party requires additional evidence or information to enable
it to decide on the request for extradition, such evidence
or information shall
be submitted to it within such time as that Party shall require.
...
[51] Article 4 contemplates that the requesting state will have to
establish a prima facie case against the suspect, sufficient
to justify his or
her committal for trial for the alleged offence in the requested state. This is
consistent with s 24(2)(d) of
the Act (which, by virtue of s 11(2), cannot be
overridden by a treaty). There is a question, to which we will return, as to
what
constitutes “evidence” for these purposes.
[52] Mr Davison argued that the treaty did not prohibit disclosure. He
pointed to the fact that arts 4 and 9 provide that the
law of the requested
state applies to the extradition determination. Disclosure was, he submitted,
part of the relevant law. We
also note that Winkelmann J said in the judgment
under appeal that there was nothing in the treaty that bears upon the issue of
disclosure.63 These points raise the question of the effect of art
12.
[53] Clearly, art 12 recognises the possibility of requests for further
information. It may be, as Mr Pike argued, that it tends
to indicate that there
was no expectation that the requesting country would ordinarily submit all the
evidence or information that
it has about a suspect and the alleged offending
when it makes its request. Rather, the focus will be on showing, by the
appropriate
process, that there is a proper basis for the suspect to be
tried.
[54] Be that as it may, Mr Pike accepted that New Zealand could seek additional information from the United States under art 12 but submitted that the United States was under no obligation to give disclosure as ordered by Judge Harvey. He referred in particular to Jenkins v United States of America, where Sedley LJ delivering the
judgment of the Administrative Court rejected an argument that a
District Judge
63 At [41].
could order disclosure in an extradition context against the United
States.64 The Court said that the correct approach was for the
District Judge to ask the Home Secretary to consider exercising the power under
art 9 of the UK/USA extradition treaty (which is identical to art 12) to request
further information from the United States.65 The Court gave two
examples of situations which might justify such a request – where
reference is made to a statement in a document
without which the statement is
not intelligible and where there is sufficient evidence before the extradition
court of an abuse of
its process to justify it calling for more information
before it reaches a decision.66
[55] The same view was taken in the Bow Street
Magistrates’ Court case. Although it acknowledged the criminal
character of extradition proceedings, the Court held that an extradition judge
could
not make an order for disclosure against a requesting state. In part this
was because of the nature of an extradition hearing (in
particular, its
non-adversarial character) and in part because the order would be against a
foreign state which was seeking to enforce
treaty rights.67
Giving the judgment of the Court, Lord Phillips said:
[85] Both our civil and our criminal procedures have complex rules in
relation to disclosure of documents. In each of the cases
before us the
persons whose extradition is being sought have persuaded the judge that he
should make an order for disclosure. We
do not consider that this was the
appropriate course to take. Neither the rules governing disclosure in a civil
action, nor those
governing disclosure in a criminal trial can be applied to an
extradition hearing. Furthermore, those rules form part of an adversarial
process which differs from extradition proceedings. Where an order for
disclosure is made, it requires one party to disclose documents
to the other,
not to the court. But where extradition is sought, the court is under a duty to
satisfy itself that all the requirements
for making the order are satisfied and
that none of the bars to making the order exists.
[86] There is a further objection to ordering disclosure. The order
will be made either against a judicial authority within
the European Union or
against a foreign sovereign state that is requesting the Secretary of State to
comply with treaty obligations.
In neither case would it be appropriate to
order discovery. Were it appropriate to make such an order, the only sanction
for a
failure to comply with it would be to reject the request for extradition.
That
64 Jenkins v United States of America [2005] EWHC 1051 (Admin) at [25].
66 At [26].
67 Bow Street Magistrates’ Court, above n 14, at [85]–[86].
fact points the way to the appropriate course that the court should take
where there are grounds for believing that an abuse of process
has
occurred.
Having cited art 9 of the UK/USA extradition treaty, the Court
said:
[89] The appropriate course for the judge to take if he has reason to
believe that an abuse of process may have occurred is to
call upon the judicial
authority that has issued the arrest warrant, or the state seeking extradition
in a Part 2 case, for whatever
information or evidence the judge requires in
order to determine whether an abuse of process has occurred or not.
[56] We accept Mr Davison’s submission that these cases must be
approached with caution as, under the 2003 UK Act, the United
States was not
required to establish a prima facie case to obtain an order for extradition.
The observations about disclosure made
in the cases were in the context of
situations where an abuse of process was alleged.
[57] However, the Privy Council in Knowles v Government of the United
States of America did address the situation where the requesting state was
required to show a prima facie case against the suspect.68 The
Privy Council held that a requesting state is not under any general duty of
disclosure similar to that imposed on prosecutors
in English criminal
proceedings even where it is required to establish a prima facie case to justify
extradition.69 The Privy Council went on to note that a requesting
state “does, however, owe the court of the requested state a duty of
candour
and good faith”.70 The Privy Council
said:71
While it is for the requesting state to decide what evidence it will rely on
to seek a committal, it must in pursuance of [the duty
of candour and good
faith] disclose evidence which destroys or very severely 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.
[58] Nicholls, Montgomery and Knowles give the following summary of the principles applicable in the United Kingdom where the requesting state is obliged to
adduce evidence in support of its application for
extradition:72
68 Knowles, above n 5.
69 At [35]. The Privy Council approved the decision of Mitting J in Wellington v Governor of
Her Majesty’s Prison Belmarsh [2004] EWHC 418 (Admin).
70 Ibid.
71 Ibid.
72 Nicholls, Montgomery and Knowles, above n 28, at [6.52] (footnote omitted).
It is for the requesting state alone to determine the evidence upon which it
relies to seek an extradition order. The requesting
state is not under any
general duty of disclosure similar to that imposed on the prosecution at any
stage in domestic criminal
proceedings. The court conducting the
extradition hearing has the right to protect its process from abuse and the
requesting
state has a duty not to abuse that process. That is no different
from saying that the requesting state must fulfil the duty of candour
which it
has always had in making applications for extradition. In fulfilment of that
duty, the requesting state must disclose any
evidence which would render
worthless the evidence on which it relies to seek committal. It is for the
person subject to the extradition
process to establish that the requesting state
is abusing the process of the court. The requested state may be given power to
request
further evidence under the relevant extradition treaty but, in the
absence of evidence of abuse, the court is entitled to, and should
generally,
refuse to request the UK authorities to exercise that power or to adjourn to
permit it to be exercised.
[59] Similarly, in Canada it has been held that there is no general right to disclosure in extradition proceedings. In United States v Dynar Mr Dynar argued that he was entitled to a high level of disclosure in the extradition proceedings against him so that he could make full answer and defence in accordance with his rights under s 7 of the Canadian Charter of Rights and Freedoms. Although the Supreme Court did not definitively resolve the issue, it commented that the requirement that an extradition hearing be conducted in accordance with the principles of fundamental justice did not automatically entitle the subject of the
application to the highest possible level of disclosure.73 The
Court said that “[t]he
context and purpose of the extradition hearing will shape the level of
procedural protection that is available to a fugitive”.74 It
noted that the role of an extradition judge is limited and that the level of
procedural safeguards, including disclosure, had to
be considered in that
context.75 Further, the Court noted that an extradition judge
lacked the jurisdictional ability to obtain further information from a
requesting state.76
[60] In United States of America v Kwok the Supreme Court also addressed the question of disclosure in an extradition context.77 The appellant was a Canadian citizen whose extradition was sought by the United States so that he could face drug
and fraud charges. He sought disclosure of material in order to
establish unjustified
73 Dynar, above n 51, at [128].
74 At [129].
75 At [130].
76 At [133].
77 United States of America v Kwok 2001 SCC 18, [2001] 1 SCR 532.
invasion of his Charter rights by Canadian officials. The Court
reiterated what it had said in Dynar, to the effect that the committal
hearing was not intended or designed to provide the discovery function of a
domestic preliminary
inquiry.78 The Court then said:
[101] In this case, the appellant was entitled to know the case against
him, including the materials upon which the United States
relied ... to
establish a prima facie case. Since the Requesting State was not relying
on material in the possession of Canadian authorities, and in the absence of any
indication of bad faith or improper motives on the part of prosecuting
authorities, there was no obligation to provide further disclosure
of materials
requested.
[61] We should note that both Dynar and Kwok were decided
under the pre-1999
Canadian legislation and prior to Ferras. Both dealt with disclosure of material generated by Canadian authorities, which the suspects sought in an effort to establish that their Charter rights had been infringed. As a consequence, Winkelmann J concluded that both decisions should be given little weight in the present context.79
We return to this aspect below.
[62] As noted earlier, Winkelmann J said that there is nothing in the NZ/US treaty which bears upon disclosure. We doubt the correctness of that conclusion. Article
12 deals with the provision of further information by the requesting state. An order for disclosure purports to require the requesting state to provide further information
– it is not directed at information that is in the hands of the New
Zealand authorities. It is not at all obvious why art 12
does not
apply.
[63] Winkelmann J also said that there was no question of the District Court making an order with extraterritorial effect as the United States was a party to the proceedings. Mr Pike challenged this conclusion. The United States is nominally a party to the extradition proceedings, but its dealings are with the executive, in particular the Minister of Justice. Mr Pike pointed out that under the Act an extradition request by a country such as the United States is made to the Minister of
Justice.80 The Minister may then notify a
District Court judge of the application and
78 At [99].
79 Ibid.
80 Section 18.
request that the judge issue an arrest warrant for the suspect.81
Once arrested, the suspect must be brought before the court as soon as
possible for a determination as to whether or not he or she
should be granted
bail.82 The court must then make a determination as to the
suspect’s eligibility for surrender (assuming that the suspect does not
surrender
by consent).83 At the hearing, a record of the case
“may be submitted by or on behalf of the exempted
country”.84 If the court determines that the person is
eligible for surrender, it must among other things make a report to the
Minister.85 The Minister must then determine whether the suspect
should be surrendered.86 If the decision is that the suspect will
be surrendered, the Minister makes a surrender order.87
[64] This indicates that, even though courts play a vital part in the
process, extradition is very much a government to government
process
– the request is directed to the executive, not the courts. This
feature also suggests that art 12 provides
the appropriate mechanism for further
disclosure. We return to this issue below.
The Act
[65] In light of the close affinity between the Act and the Canadian
legislation, we will discuss the decision of the Supreme
Court of
Canada in Ferras before discussing the relevant provisions of the Act.
This is against the background that s 29(1)(a) of the 1999 Canadian Act
is
in similar terms to s 24(2)(d)(i) of the New Zealand Act and
provides:
A Judge shall order the committal of the person into custody to
await surrender if
(a) in the case of a person sought for prosecution, there is evidence
admissible under this Act of conduct that, had it occurred
in Canada, would
justify the committal for trial in Canada on the offence set out in the
authority to proceed and the judge is satisfied
that the person is the person
sought by the extradition partner;
81 Section 19.
82 Sections 23 and 28.
83 Section 24.
84 Section 25(1) (emphasis added).
85 Section 26.
86 Section 30.
87 Section 31.
Section 33 of the Canadian Act deals with the record of the case. Section
33(1)(a)
provides:
(1) The record of the case must include:
(a) In the case of a person sought for the purpose of
prosecution, a document summarizing the evidence available to the extradition
partner for use in the prosecution;
and s 33(2):
(2) A record of the case may include other relevant
documents, including documents respecting the identification
of the
person sought for extradition.
[66] In Ferras, extradition orders had been made against the
appellants following hearings at which the record of the case procedure was
used.88 The appellants claimed that the admission of evidence by
that process violated the guarantee in s 7 of the Canadian Charter of Rights
and
Freedoms that no one may be deprived of liberty except in accordance with the
principles of fundamental justice because there
was no guarantee that the
evidence in the record of the case was reliable.
[67] The case was argued against the background that the majority of the
Supreme Court had held in an earlier decision, United States of America v
Shephard, that an extradition judge was obliged to accept evidence adduced
by the requesting state even though it was manifestly unreliable.89
The consequence of that decision was that extradition judges had felt
compelled to grant extradition orders even where it was clear
that the evidence
put forward by the requesting state was unreliable in critical respects; they
felt constrained to accept what the
requesting country said at face value
despite well-founded doubts or concerns.
[68] Delivering the judgment of the Court in Ferras, McLachlin CJ
posed the issue as being:90
... whether the [record of the case procedure rendered] the
extradition process unfair when considered together with the
other provisions of
the Act
89 United States of America v Shephard [1977] 2 SCR 1067.
90 Ferras, above n 58, at [15].
and the nature of extradition proceedings. In other words, do
these provisions raise a real risk that a person may be
committed for
extradition where the evidence does not establish conduct which, had it occurred
in Canada, would justify committal
for trial ...
[69] The Chief Justice then noted the distinction between the admissibility and the evaluation of evidence.91 Fair process in the extradition context meant that the requesting state had to establish that there were reasonable grounds to believe that the suspect may have committed the offence.92 In considering the factual and legal background to an extradition application, the judge had to act judicially and not simply as a rubber stamp.93 McLachlin CJ then noted the legislative requirements for certification of the record of the case and concluded that, if the record was appropriately certified, it was admissible. She said that the inquiry into the sufficiency of the evidence involved an evaluation of whether the conduct described in the admissible evidence would justify committal for trial in Canada.94 Under the
1999 Canadian Act, a judge at an extradition hearing had the same powers as
the judge on a preliminary inquiry in a criminal case,
although he or she was
obliged to exercise them in an extradition context. Necessarily, the judge had
to make some assessment of
the evidence.95 In this respect,
the Court departed from its earlier decision in Shephard.
[70] Against this background, the Chief Justice concluded that the record
of the case procedure did not violate the s 7 right
because the extradition
judge had a discretion “to refuse to extradite on insufficient
evidence such as where the
reliability of the evidence certified is
successfully impeached or where there is no evidence, by certification or
otherwise, that
the evidence is available for
trial”.96
[71] McLachlin CJ then turned to the question of how the judge should discharge his or her role when there is a record certified by the requesting state. Certification raised a presumption that the evidence in the record was reliable.97 A suspect was,
however, entitled to challenge its reliability. The Chief Justice
said:
91 At [16].
92 At [19].
93 At [25] and [34].
94 At [38].
95 At [46]–[49].
96 At [50].
97 At [52].
[54] Challenging the justification for committal may involve adducing
evidence or making arguments on whether the evidence could
be believed by a
reasonable jury. Where such evidence is adduced or such arguments are raised,
an extradition judge may engage in
a limited weighing of evidence to determine
whether there is a plausible case. The ultimate assessment of reliability is
still
left to the trial where guilt or innocence are at issue.
However, the extradition judge looks at the whole of the evidence
presented at
the extradition hearing and determines whether it discloses a case on which a
jury could convict. If the evidence
is so defective or appears so unreliable
that the judge concludes it would be dangerous or unsafe to convict, then the
case should
not go to a jury and is therefore not sufficient to meet the test
for committal.
[72] Subsequent appellate decisions have indicated that the role of the extradition judge in terms of evaluating the evidence is, although expanded, still a limited one. For example, in United States of America v Thomlinson Moldaver JA, giving the judgment of the Ontario Court of Appeal, said:98
[47] To summarize, I am satisfied that if there is some evidence, that
is available for trial and not manifestly unreliable,
on every essential element
of the parallel Canadian crime, upon which a jury, properly instructed, could
convict, the test for committal
will have been met. In that regard, it matters
not whether the case against the person sought is “weak” or whether
the
prospect for conviction “unlikely”. The ultimate question of
guilt or innocence is for the trial court in the foreign
jurisdiction.
[73] In other words, the requesting state did not have to show that there
was a reasonable likelihood of conviction. The Supreme
Court of Canada refused
leave to appeal.99 The approach articulated in Thomlinson
has been adopted in a number of other decisions of the Ontario Court of
Appeal.100
[74] The Court of Appeal of British Columbia has also concluded that, while Ferras expanded the role of the extradition judge beyond that previously articulated in Shephard, that role is still limited. In United States of America v Wilson the Court,
in a judgment delivered by Finch CJBC, quoted from Ferras and
said:101
98 United States of America v Thomlinson 2007 ONCA 42, (2007) 216 CCC (3d) 97.
99 (2007) 218 CCC (3d) vi (SCC).
100 See, for example, United States of America v Anderson 2007 ONCA 84, (2007) 218 CCC (3d)
225, leave to appeal refused, (2007) 220 CCC (3d) vi (SCC); United States of America v Nadarajah 2010 ONCA 859, (2010) 266 CCC (3d) 447, leave to appeal granted, but on another point. The Supreme Court dismissed the appeal: see Sriskandarajah v United States of America
101 United States of America v Wilson 2011 BCCA 514, (2011) 281 CCC (3d) 15. See also United States v Costanzo 2009 BCCA 120, (2009) 243 CCC (3d) 242, leave to appeal refused, (2009) 244 CCC (3d) vi (SCC); United States of America v Rosenau 2010 BCCA 461, (2010)
262 CCC (3d) 515, leave to appeal refused, (2011) 264 CCC (3d) iv (SCC); United States of
[36] These passages demonstrate that the function of an extradition
judge is to determine the threshold reliability of the evidence
set out in the
[record of the case]. Although there is a presumption of reliability supporting
that evidence, it is a presumption
that can be rebutted. The judge is not to
accept the [record of the case] at face value.
[37] Where evidence is tendered that would tend to impeach the
reliability of the [record of the case], the judge must
consider that evidence
and engage in a limited weighing of it to determine the sufficiency of the
evidence for committal to trial.
That function is at the heart of a fair and
meaningful judicial process.
[75] The Court of Appeal of Manitoba has also adopted a similar view as
to the effect of Ferras.102 Moreover, the Court said that
Ferras had made it clear that the nature of extradition proceedings
severely restricted the extent of disclosure that would be required from
requesting states. “Extradition hearings continue to be part of an
expedited process to comply with Canada’s international
obligations”.103
[76] In United States v Michaelov the Ontario Court of Appeal considered the question of disclosure in an extradition context after Ferras.104 The United States alleged that Mr Michaelov, a Canadian resident, had failed to remit sales tax collected from customers of two car dealerships that he owned in New York and sought his extradition to face trial. The record of the case included a summary of the trial evidence that an auditor was expected to give. The auditor had reviewed a large
number of forms that had been submitted by the dealerships to state
authorities indicating that state and local taxes had been collected
from
purchasers. The auditor said that most of the forms carried Mr
Michaelov’s signature. Mr Michaelov denied that he had
signed the forms
(or, at least, most of them) and sought an order that they be disclosed for the
purpose of his extradition hearing.
He argued that he needed to consider the
forms to see whether he could impeach the presumptively reliable contents of the
record
of the case and that disclosure was necessary to enable him to have a
fair hearing. The extradition judge refused his application.
[77] The Ontario Court of Appeal summarised the submissions of his
counsel, Mr Gold, as follows:
America v Edwards 2011 BCCA 100, (2011) 271 CCC (3d) 471.
102 United States of America v Gunn 2007 MBCA 21, [2007] 4 WWR 707, leave to appeal refused,
103 At [43].
104 United States of America v Michaelov 2010 ONCA 819, (2010) 264 CCC (3d) 480.
[33] Mr Gold submits that the decision of the Supreme Court of Canada in
[Ferras] altered the extradition landscape, permitting an
extradition hearing judge to consider and reject the case for committal
on the
ground that its evidentiary underpinnings are manifestly unreliable. It follows
from Ferras, Mr Gold says, that the person sought may attack the
reliability of the prosecutor’s case, in other words, may impeach or rebut
the presumed reliability of the certified [record of the case].
[34] Mr Gold points out that the decision of the Supreme Court
of Canada in [Kwok] authorizes an extradition hearing judge to order
disclosure of materials relevant to issues properly raised at the
committal
hearing. Since the reliability of the evidentiary foundation of the
prosecutor’s case is in issue at the hearing, according
to Ferras,
it follows, Mr Gold urges, that the presiding judge should have ordered
disclosure of materials that could have assisted the appellant
in that
pursuit.
[78] Having stated the relevant principles concerning the test for
committal in terms of Ferras and Thomlinson, and concerning
disclosure in terms of Dynar and Kwok, the Court upheld the
extradition judge’s decision not to order disclosure. The Court said that
Mr Michaelov’s argument
confused threshold reliability with ultimate
reliability, the extradition hearing being concerned with the former and the
trial with
the latter. The Court also noted that under United States’
law, the prosecution would not provide disclosure until 30 days
after
arraignment, so ordering disclosure on the basis sought would provide Mr
Michaelov with earlier disclosure than he would be
entitled to under the law of
the United States.
[79] The Supreme Court of Canada refused leave to appeal in this
case.105
[80] As we noted above, Winkelmann J discounted the significance of Dynar and Kwok on the basis that the disclosure sought in those cases, which related to material gathered by the Canadian authorities at the request of the United States authorities, was sought to support arguments that the suspects’ Charter rights had been breached. Winkelmann J said that these issues were “clearly collateral to the extradition
issue”.106 The Judge acknowledged that some cases after
Ferras had applied the
approach articulated in Dynar and Kwok where disclosure was sought on the core extradition issue but said that she did not find these authorities particularly
persuasive.107 However, Michaelov (which
may not have been drawn to the Judge’s
105 See (2011) 264 CCC (3d) iv (SCC).
106 At [98].
107 At [98]–[99].
attention) dealt directly with the issue of disclosure on the core
extradition issue. The fact that the Supreme Court did not grant
leave suggests
the Court did not regard the decision as wrong or as raising any issue of
principle. Accordingly, we consider that
Dynar and Kwok remain
authoritative on the question of disclosure.
[81] Against this background we turn to the Act. We will begin with s
25, then discuss s 24 (including s 22). In considering
these provisions, we
are mindful of what the majority of the Supreme Court said in
Kim:108
The overall purpose of the Extradition Act includes facilitation of
the bringing to justice of those in New Zealand accused
of serious crimes
committed outside of New Zealand. It is well-recognised that this purpose calls
for a contextual construction
of extradition statutes that accommodates the
different legal systems to which they apply, rather than one premised on the
meanings
reflecting the context of criminal procedure under New Zealand
domestic law.109
(a) Section 25
[82] As we have said, s 25(2) addresses the content of the record of the
case. For ease of reference, we set it out again. Section
25(2)
provides:
A record of the case must be prepared by an investigating authority or a
prosecutor in an exempted country and must contain–
(a) a summary of the evidence acquired to support the request for the
surrender of the person; and
(b) other relevant documents, including photographs and copies of
documents.
There is a potentially significant difference between this and the equivalent
Canadian provision (see [65] above). Section 25(2)
says that the record
must contain other relevant documents whereas the Canadian provision (s
33(2)) says that the record may include other relevant
documents.
[83] Section 25(3) requires that a record of the case be accompanied
by:110
108 Kim, above n 24, at [42].
109 Re Ismail [1998] UKHL 32, [1999] 1 AC 320 at 329.
110 Section 25(3)–(4).
(a) an affidavit from a prosecutor, or an officer of the
investigating authority, stating that the record of the case
was prepared under
his or her supervision and that the evidence has been preserved for use at the
suspect’s trial; and
(b) a certificate from a law officer or his or her delegate, or other
person who has control over the decision to prosecute,
that in his or her
opinion the record of the case discloses the existence of evidence that is
sufficient under (in this case) United
States’ law to justify prosecution
in the United States.
It was not suggested to us that there had been any failure to meet these
requirements.
[84] Section 25(4)(a) allows an exempted state to satisfy the test in s
24(2)(d)(i) other than by way of the record of the case
procedure. Section
25(4)(b) makes it clear that nothing in s 25 “limits the evidence that may
be admitted at any hearing
to determine whether a defendant is eligible for
surrender”. We discuss this provision further at [90] below.
[85] As we understood Mr Davison’s argument, the summary
referred to in s 25(2)(a) is a summary of the evidence
that witnesses
will give at trial. Accordingly, witness statements need not be produced.
However, copies of all other relevant
documents must be produced as part of the
record. For his part, Mr Pike says that is contrary to the purpose for which
the record
of the case procedure was introduced and would significantly
undermine its effectiveness, particularly in document-intensive cases
such as
commercial fraud cases.
[86] Section 25(2)(a) refers to “a summary of the evidence acquired
to support the request for surrender”. There
seem to us to be three
significant features of this provision:
(a) The word “evidence” is apt to cover both evidence that witnesses will give and documentary evidence. In this context, it is relevant that the accompanying affidavit referred to in s 25(3)(a) must state that the
evidence has been “preserved” for use at the person’s
trial, a term that covers more than simply oral evidence.
We consider that the
words “other relevant documents” in s 25(2)(b) must be interpreted
against this background.
(b) What is required is a “summary” of the evidence.
(c) The evidence to be summarised relates to the request for surrender,
not to the trial. While the evidence referred to in
the record of the case must
be available for trial, the record will not necessarily contain all the evidence
that it is proposed
to lead at trial although it must, of course, be
sufficient to establish a prime facie case against the
suspect.
[87] The words “other relevant documents” in s 25(2)(b) are
not, in our view, a roundabout way of requiring a requesting
state to give
disclosure of all relevant documents it holds as would occur prior to a criminal
trial. As originally drafted, s 25(2)(b)
did appear to impose such a
requirement. As introduced, cl 25 of the Extradition Bill provided:
(2) A record of the case must be prepared by an investigating authority or a
prosecutor in an exempted country and must contain–
(a) A recital of the evidence acquired to support the request for the
surrender of the person; and
(b) A certified copy, reproduction, or photograph of all exhibits,
documentary evidence, and depositions of witnesses; and
(c) Any other matter required by regulations made under this
Act.
Had s 25(2) been enacted in that form, it is difficult to see that the record
of the case procedure would have served any useful
purpose from the
perspective of a requesting state such as the United States.
[88] However, when enacted, the word “recital” in paragraph
(a) was replaced by
“summary”, paragraph (b) was significantly amended and paragraph (c) was omitted.
Although the material available to us does not explain the changes, we think
the following conclusions can fairly be drawn:
(a) The word “recital” suggests a greater
degree of detail than “summary”, so that
the replacement
of the former by the latter suggests that what is required is that the
important features of the evidence
be identified. Ultimately, however, what is
provided must be sufficient to show that there is a prima facie case against
the suspect.
(b) The replacement of “all exhibits, documentary
evidence, and depositions of witnesses” by “other
relevant
documents” supports the view that “evidence” in paragraph (a)
includes documentary evidence.
(c) The word “other” before “relevant documents”
suggests that the documents being referred to in paragraph
(b) are documents
that are not covered in the summary provided under paragraph (a). There will be
some obvious examples. One of
the important issues for an extradition court is
identity. The court must ensure that the person before the court is the person
to whom the application relates. Photographs are one means of establishing
identity and are likely to be provided as part of the
record of the case as they
cannot readily be summarised.
[89] Given the language of s 25(2)(b), we do not consider that the United States was obliged to include in the record of the case all relevant documents whether or not they were summarised or referred to in the summary of evidence prepared under s 25(2)(a). We do not agree with Winkelmann J that the effect of s 25(2)(b) is to require the United States to addend to its summary “the documents referred to directly or indirectly in the [record of the case] in support of the request for
surrender”.111 Rather, we consider that s 25(2)(b) requires the United States to
include documents essential to justifying the extradition request but which
could not be, or were not, summarised or referred to in
the summary.
111 At [111].
[90] We return to s 25(4)(b), which provides that nothing in s 25 “[l]imits the evidence that may be admitted at any hearing to determine whether a defendant is eligible for surrender”. Mr Pike had argued in the High Court, as he did in this Court, that s 25(4)(b) was, like s 25(4)(a), intended to apply only to the requesting state, not to the suspect. Winkelmann J rejected that contention. She indicated that had that been Parliament’s intention, clear language would have been required, such
as is found in s 45(5)(a).112 That section applies to pt 4
extradition proceedings (the
endorsed warrant process) and provides that a suspect being dealt with under
that part “is not entitled to adduce, and the court
is not entitled to
receive, evidence to contradict an allegation that the person has engaged in
conduct that constitutes the offence
for which surrender is
sought”.
[91] We consider that the argument about the effect of s 25(4)(b) is
something of a distraction. Mr Pike did not dispute that
a suspect is entitled
to lead evidence to, among other things, challenge the reliability of the
evidence summarised in the record
of the case, although he argued that the
suspect’s ability in this respect was circumscribed. That the suspect is
entitled
to lead evidence is clear from Ferras and the nature of the task
an extradition court is required to perform. But that does not mean that a
suspect is entitled to full
or extensive disclosure from the requesting state
before doing so.
[92] We should at this juncture refer to s 102 of the Act and to the
Criminal Disclosure Act 2008 as both featured in the argument.
Section 102 of
the Act deals with the power of the Governor-General to make regulations. Under
s 102(1)(e)(i) the Governor-General
has the power to make regulations:
Prescribing the practice and procedure of District Courts in relation to
proceedings under this Act, including (without limitation),–
(i) the pre-hearing disclosure of information:
Section 102(2) provides:
Regulations made under subsection (1)(e) may provide for different practice
and procedure in relation to proceedings under Part 3
than in relation to
proceedings under Part 4.
112 At [83].
[93] It was argued that these provisions indicated that Parliament
contemplated that pre-hearing disclosure of information would
be
available.
[94] The regulation-making power in relation to pre-hearing disclosure was introduced into the Bill when the Select Committee reported back to the House, albeit without comment. The inclusion of the power reflected the recommendation of officials. Officials noted that in Flickinger v Crown Colony of Hong Kong the High Court had held that there was no ability to obtain general disclosure in
extradition proceedings, given that they were not criminal trials,113
but that in Franic
v Wilson the High Court had ordered that further particulars be
provided to the suspect.114 Officials considered that the
executive should have the power to make regulations to specify which aspects of
domestic criminal procedure
should apply in particular extradition contexts.
Although the Select Committee included the regulation-making power in the Bill
when reporting back, it made no comment about it.
[95] The existence of the regulation-making power suggests it was not
intended that the ordinary rules relating to disclosure
in domestic criminal
proceedings would apply to extradition proceedings. Apart from that, the
regulation-making power is generally
worded and provides little assistance with
the resolution of the particular issue before us. In any event, the fact that
an extradition
court may be able to require further disclosure in some
contexts does not mean that it may do so in all: potentially,
an
extradition court has a range of matters to consider, including whether a
mandatory or discretionary restriction on extradition
applies. Apart from
that, these provisions cannot override a relevant treaty provision, such as art
12.
[96] In relation to the Criminal Disclosure Act, Winkelmann J noted that there are several difficulties with the argument that it applies in the extradition context.115 In particular, it is not listed in s 22(1)(b) as one of the statutory provisions which applies to extradition hearings. Further, its application is inconsistent with the regulation-making power in s 102 and with the approach that has been taken in
Canada and the United Kingdom.
113 Flickinger v Crown Colony of Hong Kong [1990] NZHC 428; [1990] 3 NZLR 372 (HC).
114 Franic v Wilson [1993] 1 NZLR 318 (HC).
115 At [103].
(b) Section 24
[97] To recapitulate, under s 24 an extradition judge must determine whether the suspect is eligible for surrender. Section 24(2)(d) requires that the court be satisfied that the evidence before it would be sufficient to justify the suspect’s trial if the conduct constituting the offence had occurred in New Zealand. In other words, the court must be satisfied that there is a prima facie case against the suspect. By virtue of s 22(1)(a), except as expressly provided in the Act the court “has the same jurisdiction and powers, and must conduct the proceedings in the same manner, as if the proceedings were a committal hearing of an information for an indictable offence alleged to have been committed within the jurisdiction of New Zealand”. Section
22(1)(b) then provides that, among other things, pt 5 of the Summary
Proceedings Act 1957 applies to extradition proceedings “so
far as
applicable and with the necessary modifications”.
[98] The use of the phrase “committal hearing” in s 22(1)(a) is significant. Part 5 of the Summary Proceedings Act provides for standard committals and committal hearings. Standard committals occur on the papers, without committal hearings, and involve no consideration of the evidence; by contrast, committal hearings occur only
after oral evidence orders have been made and are the consequence of such
orders.116
At a committal hearing, the court must be satisfied that the evidence adduced
by the prosecutor is sufficient to put the defendant
on trial, otherwise it must
discharge the defendant.117
[99] Section 22(1)(a) directs that there be a hearing of the nature of a committal hearing. An extradition court must, therefore, consider the evidence. It might be thought that this direction renders oral evidence orders redundant in the extradition context given that they are the trigger for committal hearings in domestic criminal proceedings. Moreover, extradition hearings where the record of the case procedure is used are essentially “on the papers” processes at least as far as the requesting state
is concerned.
116 Summary Proceedings Act 1957, s 145(1).
117 Section 184G.
[100] However, the procedure at committal hearings is dealt with in s 184 and following of the Summary Proceedings Act. Section 184A(1)(b) requires that at a committal hearing the prosecution call “each prosecution witness who is to give oral evidence under an oral evidence order” and s 184A(2)(b) contains a similar provision in relation to the defence. Section 184B provides that the court must not hear oral evidence from the defendant or a witness unless an oral evidence order has been made in respect of him or her. There does not appear to be any reason why this procedure should not apply in the extradition context. Ultimately, it provides a mechanism for the extradition court to control the extent of any oral evidence, so as
to ensure relevance and the like. In this respect, we agree with Winkelmann
J.118
[101] While the test to be applied at an extradition hearing is the same as
that applicable to a committal hearing, the process
to be followed must be
modified in some respects to take account of the record of the case procedure.
This is consistent with Ferras.
[102] To explain, the record of the case does not contain evidence in the traditional sense but rather a summary of the evidence available to the requesting state for trial. The record is admissible as evidence in the extradition hearing only by virtue of s 25. As previously noted, it will be admissible only if it is accompanied by an affidavit from an investigating officer or prosecutor stating that he or she prepared, or oversaw the preparation of, the record and that the evidence (that is, the evidence summarised) has been preserved for use in the person’s trial. A law officer or head prosecutor must depose that the record discloses evidence sufficient under the law of the requesting state to justify a prosecution in that state. These are important requirements, designed to protect the integrity of the process. They inevitably impact on the nature of the extradition hearing. If a suspect was entitled to demand disclosure of all relevant documents on the basis that he or she wished to challenge not the reliability of the summarised evidence but rather the inferences that the requesting state seeks to draw from it, the record of the case procedure would lose much if not most of its efficacy. We do not accept that Parliament intended such an
outcome.
118 At [87].
[103] In addition, it must not be forgotten in this context that the
requesting state owes a duty of candour and good faith, as
earlier explained.
An extradition court is entitled to expect that a requesting state will have met
its obligations in that respect,
at least in the absence of any evidence that it
may not have. It may be in a particular case that a suspect will be able to
lead
evidence which indicates that the extradition request involves an abuse of
process. If that occurs, the court will, of course, have
to be satisfied that
there is no such abuse.
Drawing the threads together
[104] We return to the point that extradition is a process which must be
seen in its international context. It simply provides
a mechanism to enable
the return of a suspect to the requesting state to stand trial for alleged
criminal offending. There are,
as we have described, important protections for
the suspect in the process, particularly in the mandatory and discretionary
restrictions
on surrender in ss 7 and 8 of the Act. Further, in relation to
extraditions under pts 3 and 5 of the Act where substantive extradition
hearings
must be held, the District Court must be satisfied that the evidence establishes
a prima facie case against the suspect.
The question in this case is what that
requires of a country utilising the record of the case procedure in terms of
disclosure.
[105] It is useful to return to the distinction made by the Supreme Court of Canada in Ferras between the admissibility of evidence and the sufficiency of evidence. The Court described the admissibility provisions in the 1999 Canadian Act as being “aimed at establishing threshold reliability” while sufficiency goes to the question whether the evidence establishes a prima facie case against the suspect.119 The Court accepted that an extradition judge has a discretion to refuse to extradite on insufficient evidence “such as where the reliability of the evidence certified is successfully impeached or where there is no evidence, by certification or otherwise, that the evidence is available for trial”.120 It said that there is a presumption of
reliability in respect of the evidence in the record but the suspect is
entitled to
119 At [17].
120 At [50].
challenge that by evidence or argument.121 We consider that
the same position applies under the New Zealand Act.
[106] Like other states making extradition requests, a requesting state
utilising the record of the case procedure has a duty of
candour and good faith.
Subject to that, it is for the requesting state to decide what information it
wishes to put before the requested
state in support of its request. The record
must, of course, be accompanied by an affidavit from the investigating
authorities and
a certificate from a law officer or prosecuting official, which
are also important both as constraints on the requesting state and
protections
for the suspect. The suspect is entitled to challenge the reliability of the
record, whether by argument or leading
evidence. Where that occurs, the
extradition court must undertake a limited weighing of the evidence.
[107] Article 12 of the NZ/US extradition treaty contemplates that New Zealand may seek further information from the United States. In general, where an extradition court considers that it needs further information to determine whether or not it is satisfied that there is a prima facie case against a suspect, it should convey that request to the Minster of Justice, who must then consider whether to convey it to the United States. The position may arguably be different where the extradition court considers, on the basis of cogent evidence, that its processes may be being abused by the requesting state. In such circumstances, it may be that the court itself should be entitled to order disclosure so as to protect the integrity of its processes, as
appears to be envisaged in Canada if there is an “air of reality”
to the allegations,122
although not in the United Kingdom.123
[108] Finally, as we noted earlier, the record of the case procedure is an “on the papers” process as far as the requesting state is concerned. There can be no sensible expectation that a requesting state such as the United States will have potential trial witnesses available in New Zealand for an extradition hearing. This affects the extent of the evaluation that the extradition court can conduct and the nature of the evidence that the suspect can reasonably expect to present. The role of the
extradition court is, as the Canadian and United Kingdom courts have
repeatedly
121 At [52]–[53].
122 See, for example, the discussion in United States v Rosenau, above n 101, at [36]–[64].
123 Bow Street Magistrates’ Court, above n 14, at [89]. (Quoted at [55] above).
said, a limited one. In this context, it is to ensure that the requesting state has presented sufficient evidence to indicate that there is a prima facie case against the suspect. A suspect may well be able to point to gaps or flaws in the material summarised or analysed in the record of the case, or may be able to point to documentary or other evidence which causes the extradition court to doubt the reliability of the material proffered by the requesting state. This may cause the extradition court to conclude that the requesting state has not established a prima facie case. But a challenge which does not go to the reliability of the material in the record but to its interpretation – that is, to the inferences that should be taken from it
– is more appropriate to a trial than to an extradition
hearing.
[109] It follows from the foregoing analysis that, in our view, the
disclosure orders in this case were wrongly made.
Relief
[110] In the judicial review application, the United States sought by way
of relief
that Judge Harvey’s disclosure orders be set aside. It also sought
orders:
Declaring that the District Court in determining a request for extradition to
which section 25 of the Extradition Act applies does
not have jurisdiction to
make any order in the nature of general criminal disclosure beyond the Record of
the Case.
Declaring that any disclosure may be made only if:
(a) The respondents satisfy the Court that there are specified items
of inherently cogent evidence to which they do not have
access, and
(b) Those items of evidence will (despite the presumption of
the reliability of the Record of the Case) establish
that the evidence
summarised in the record of the Case is manifestly unreliable and cannot support
any particular charge or charges
to which the extradition request
relates.
Finally, the United States sought costs.
[111] We consider that the appeal should be allowed and the disclosure orders made by the District Court should be quashed. We are not prepared to make the declarations sought, however. Although we agree that in general further information should be sought from a requesting state such as the United States through the art 12
mechanism rather than by ordering disclosure, there may be situations
where a disclosure order would be justified (for example,
where there is cogent
evidence that the court’s processes are being abused). Certainly, we are
unwilling to rule out that
possibility especially as it has some support in the
Canadian authorities although not in those from the United Kingdom. Given the
difficulty of anticipating all possible situations, we think it unwise to go
beyond what is required to determine the present case.
[112] In relation to the cross-appeal, as we say at [100] above, we agree
with Winkelmann J’s analysis in relation to
oral evidence orders,
and accordingly consider it must fail.
[113] On the question of costs, we are not sure what occurred in the High
Court in relation to costs. As to costs in this Court,
they will be reserved.
The parties may apply for further orders if that is thought
necessary.
Decision
[114] We allow the appeal and quash the disclosure orders made by the
District
Court.
[115] We dismiss the cross-appeal.
[116] The question of costs is reserved. The parties may file further
memoranda if necessary.
Solicitors:
Crown Law Office, Wellington for Appellant and Second Respondent
Simpson Grierson, Auckland for First Respondents
APPENDIX A
Disclosure ordered by the District Court
1. Criminal breach of copyright
(a) A copyright ownership element
(i) All documents either connected to, related to or evidencing legal
ownership of the copyright interest allegedly infringed.
(b) Infringement element
(i) All documents either connected to, related to or evidencing
alleged infringement of the copyright interests, including
but not limited
to:
• all records obtained or created in connection with the
covert operations undertaken by agents involved in
the investigations
related to these proceedings in transacting and uploading/downloading data and
files on the Megaupload site;
• all records or information and/or material provided to or obtained
by the investigating and/or prosecuting agencies in
this case from holders
and/or owners of copyright interests evidencing alleged infringement of
their copyright and/or complaining
of such alleged infringement;
• all records and materials related to communications
between relevant copyright holders and Megaupload
and/or its employees
regarding their copyright interest, the direct delete access provided by
Megaupload to any such copyright owners,
and any communications between the
copyright owners and Megaupload and/or its staff regarding take-down
notices.
(c) Commercial element
(i) All/any records or materials or information relating to the
operation of the Megaupload rewards scheme for premium users,
including but not
limited to:
• all documents containing communications between Megaupload Ltd and/or its employees and the said premium users, including communications regarding the payment of, entitlement to or qualification for rewards; and
• all documents relating to the payment of all/any rewards to
"premium" users. (d) Knowledge/wilfulness element
(i) All and any documents materials and/or records containing evidence
relied upon by the respondent as evidencing or supporting
the allegation that
the applicant acted wilfully in relation to the infringement of copyright
material;
(ii) All documents evidencing communications between the
applicant and all/any of the alleged co-conspirators demonstrating
either
knowledge or wilfulness on the part of the applicant, or the absence
thereof in relation to the deliberate and unlawful
infringement of copyright
including but not limited to:
• all emails passing between, exchanged, forwarded, copied (either
directly or indirectly) between the applicant and all
or any of the alleged
co-conspirators; and
• all telephone and other forms of electronic communication
(including Skype) intercepted in the course of the investigation,
including both
transcripts and electronic recordings of such communications.
2. Money laundering
(a) All documents allegedly evidencing the transfer and/or handling of
funds for the purpose of money laundering.
(b) All documents containing descriptions of transactions or recording
financial transactions undertaken by the applicant (either
directly or
indirectly) for the purpose of money laundering.
3. Racketeering
(a) All documents said to evidence the formation and/or existence of an
enterprise involved in "racketeering activity".
(b) All documents said to evidence participation by the applicant in
such an enterprise.
(c) All documents said to evidence the engagement in
"racketeering activity" by the applicant and/or the said enterprise.
4. Wire fraud
(a) All documents said to evidence that the applicant, by means of any of the specified mechanisms of transmission (see 18 USC § 1343) by
which it is alleged that the applicant received a benefit or caused a loss as
a result of false or fraudulent pretences.
(b) All documents said to evidence the fraudulence and/or falsity of the basis upon which the applicant is alleged to have received a benefit or caused a loss.
APPENDIX B
22 Powers of court
(1) In proceedings under this Part, except as expressly provided in this
Act or in regulations made under section 102,—
(a) the court has the same jurisdiction and powers, and must conduct the
proceedings in the same manner, as if the proceedings
were a preliminary hearing
of an information for an indictable offence alleged to have been committed
within the jurisdiction of
New Zealand; and
(b) the following provisions apply to the proceedings, so far as
applicable and with the necessary modifications:
(i) Parts 5 and 5A and sections 203, 204, and 206 of the Summary
Proceedings Act 1957:
(ii) Parts 1 (except sections 9 to12), 2, and 4 of the Bail Act 2000: (iii) the Criminal Procedure (Mentally Impaired Persons) Act 2003.
(2) Despite section 5 of the Summary Proceedings Act 1957, a District
Court presided over by Justices or 1 or more Community Magistrates
does not have
jurisdiction to conduct proceedings under this Part.
(3) Despite section 46(1) and (2) of the Summary Proceedings Act
1957 (as applied by section 153 of that Act) and section
28(2) of the Bail Act
2000, a decision under this Part to remand a person in custody or on bail may be
made only by a Judge.
...
24 Determination of eligibility for surrender
(1) Subject to section 23(4), if a person is brought before a court under
this Part, the court must determine whether the person
is eligible for surrender
in relation to the offence or offences for which surrender is sought.
(2) Subject to subsections (3) and (4), the person is eligible
for surrender in relation to an extradition offence
for which surrender is
sought if—
(a) the supporting documents (as described in section 18(4)) in relation
to the offence have been produced to the court; and
(b) if—
(i) this Act applies in relation to the extradition country subject to
any limitations, conditions, exceptions, or qualifications
that require the
production to the court of any other documents; or
(ii) the terms of an extradition treaty in force between New Zealand and
the extradition country require the production to the
court of any other
documents—
those documents have been produced to the court; and
(c) the court is satisfied that the offence is an extradition offence in
relation to the extradition country; and
(d) the court is satisfied that 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 within
the jurisdiction of New Zealand; or
(ii) in the case of a person alleged to have been convicted of an
extradition offence, prove that the person was so convicted.
(3) The person is not eligible for surrender if the person satisfies the
court—
(a) that a mandatory restriction on the surrender of the person applies
under section 7; or
(b) except in relation to a matter referred to in section 30(2)(ab), that
the person's surrender would not be in accordance with
the provisions of the
treaty (if any) between New Zealand and the extradition country.
(4) The court may determine that the person is not eligible for surrender
if the person satisfies the court that a discretionary
restriction on the
surrender of the person applies under section 8.
(5) Subsections (3) and (4) are subject to section 105.
(6) Without limiting the circumstances in which the court may adjourn a
hearing, if—
(a) a document or documents containing a deficiency or deficiencies of
relevance to the proceedings are produced; and
(b) The court considers the deficiency or deficiencies to be
minor in nature,—
the court may adjourn the hearing for such period as it considers reasonable to allow the deficiency or deficiencies to be remedied.
25 Record of case may be submitted by exempted country at
hearing
(1) For the purposes of any determination under section 24(2)(d)(i), a record
of the case may be submitted by or on behalf of an exempted
country.
(2) A record of the case must be prepared by an investigating authority or
a prosecutor in an exempted country and must contain—
(a) A summary of the evidence acquired to support the request for
the surrender of the person; and
(b) Other relevant documents, including photographs and copies
of documents.
(3) The record of the case is admissible as evidence if it is accompanied
by—
(a) An affidavit of an officer of the investigating authority,
or of the prosecutor, as the case may be, stating that
the record of the case
was prepared by, or under the direction of, that officer or that prosecutor and
that the evidence has been
preserved for use in the person's trial; and
(b) a certificate by a person described in subsection (3A) stating that,
in his or her opinion, the record of the case discloses
the existence of
evidence that is sufficient under the law of the exempted country to justify a
prosecution in that country.
(3A) A person referred to in subsection (3)(b) is—
(a) the Attorney-General or principal law officer of the exempted
country, or his or her deputy or delegate; or
(b) any other person who has, under the law of the exempted country,
control over the decision to prosecute.
(4) Nothing in this section—
(a) Prevents an exempted country from satisfying the test in section
24(2)(d)(i) in accordance with the provisions of this Act that are
applicable to countries that are not exempted; or
(b) Limits the evidence that may be admitted at any hearing to determine
whether a defendant is eligible for surrender.
(5) A court to which a certificate under subsection (3)(b) is produced must take judicial notice of the signature on it of a person described in subsection (3A).
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URL: http://www.nzlii.org/nz/cases/NZCA/2013/38.html