New Zealand

The case concerned the United States’ long-running request for the extradition of Kim Dotcom from New Zealand to stand trial on charges of criminal copyright infringement, racketeering and wire fraud. After earlier proceedings had established his eligibility for surrender, the Minister of Justice ordered surrender to the United States. Mr Dotcom sought judicial review of that decision and of the Police Commissioner’s refusal to prosecute him in New Zealand for equivalent domestic offences. The Court of Appeal dismissed the appeal. It held that the decision not to prosecute Mr Dotcom in New Zealand was lawful and rational. His position differed from that of two alleged co-conspirators who had pleaded guilty in New Zealand: he was alleged to be the primary offender, he had not offered to plead guilty, and, most importantly, the United States had not withdrawn its extradition request. The Court also held that New Zealand law contains no general forum bar requiring domestic prosecution instead of extradition where prosecution in New Zealand might be possible. As to the Minister’s surrender decision, the Court accepted that, if convicted in the United States, Mr Dotcom could face a sentence substantially longer than any sentence likely to be imposed in New Zealand, potentially amounting in practice to imprisonment for the rest of his natural life. However, the Court held that the Minister had not erred in law or fact in concluding that surrender would not expose him to disproportionately severe punishment contrary to section 9 of the New Zealand Bill of Rights Act. Nor was the likely sentence irreducible, since United States law provided mechanisms such as compassionate release and executive clemency. The appeal was dismissed and the surrender decision upheld.

The case concerned Australia’s request for the extradition of a New Zealand citizen accused of causing grievous bodily harm in Perth in 2014. The alleged assault was serious, but the Australian authorities delayed for several years before progressing the extradition request. Although the public interest in extradition remained important, the Court held that the exceptional combination of long prosecutorial delay and the requested person’s transformed personal, family and cultural circumstances crossed the high threshold of oppression. The District Court found the requested person eligible for surrender and ordered extradition. The High Court quashed the surrender order, holding that the passage of time made extradition oppressive. The Court of Appeal reversed that decision and referred the case to the Minister of Justice. The Supreme Court of New Zealand allowed the appeal and reinstated the High Court’s quashing of the surrender order. It held that section 8(1)(c) of the Extradition Act 1999 requires a holistic assessment of whether, because of the time that has passed and having regard to all the circumstances of the case, surrender would be unjust or oppressive. The public interest in extradition and the seriousness of the alleged offending are relevant, but they are not to be weighed through a separate proportionality-style balancing exercise, since the high statutory threshold already reflects the public interest in extradition. Nor should comity operate as a “thumb on the scales” in favour of surrender where it is not directly relevant to the oppression inquiry. In this case, the delay was long, inexcusable and attributable to the requesting authorities, while the requested person had not fled justice and had been unaware of the charge for many years. During that period, he had returned to his home community, reconnected with his whānau, hapū and iwi, become involved in marae and community life, formed a stable relationship and had a young child. Taking all circumstances together, surrender would be oppressive. The reference to the Minister was revoked and the High Court’s order quashing surrender was reinstated.

For the purposes of extradition and the assessment of double criminality, drug trafficking offences may be considered “importation offences” even where the narcotics merely transit through the requesting State, provided that the Record of the Case supports a reasonable inference that the drugs entered, or were intended to enter, that jurisdiction in the context of the alleged conspiracy. Leave to appeal was further denied on the ground that the Record supported an inference that the requested person, as a member of the smuggling operation responsible for customs paperwork in the requested State, knew both the method and the route through the requesting State that the drugs would take.

The High Court of New Zealand reviewed the lawfulness of a ministerial decision ordering surrender to the United States, focusing on whether all relevant factors had been properly considered. In particular, the Court examined the significance of the disparity between the potential sentence in the requesting State and the sentence likely applicable under domestic law. While reaffirming the limited scope of judicial review in extradition matters, the Court held that surrender decisions must adequately address proportionality concerns and may be set aside where relevant considerations — including sentencing consequences — have not been properly evaluated.

In matters of extradition to a foreign State, where a foreign State succeeds another State with which Italy had already concluded an extradition agreement or convention, no obligation of reciprocal judicial cooperation exists in the absence of an expression of mutual consent by Italy and the newly established State demonstrating their shared intention to remain bound by the previously signed convention. (In the case at hand, the Court held that a unilateral communication was insufficient—namely, New Zealand’s notification to Italy of its intention to rely on the 1873 agreement on “reciprocal extradition” concluded with Great Britain, pursuant to Article 44 of the Treaty of Peace with the Allied Powers—since no corresponding intention had been expressed by Italy).