Ortmann v United States of America
[2018] NZCA 233
•5 July 2018 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA302/2015CA127/2017 CA128/2017 CA493/2017 CA494/2017 CA495/2017 CA511/2017 [2018] NZCA 233 |
| BETWEEN | MATHIAS ORTMANN |
| AND | UNITED STATES OF AMERICA |
| Hearing: | 12–15 and 19–23 February 2018 (further material received 20 April 2018) |
Court: | Kós P, French and Miller JJ |
Counsel: | G M Illingworth QC, A K Hyde and PJK Spring for Messrs Ortmann and van der Kolk |
Judgment: | 5 July 2018 at 10 am |
JUDGMENT OF THE COURT
AMr Dotcom’s, and Messrs Ortmann and van der Kolk’s, applications for leave to adduce further evidence on appeal are declined.
BLeave to file the submissions referred to in the memorandum of Mr Illingworth QC dated 24 April 2018 is declined.
CThe questions of law on which Gilbert J granted leave are answered as follows:
(a)Question 1: Was the High Court Judge correct to find that the essential conduct with which the appellants are charged in each count constitutes an extradition offence for the purposes of s 24(2)(c) of the Extradition Act 1999?
Answer: Yes, though for somewhat different reasons.
(b)Question 2: Was the High Court Judge correct to conclude that copyright in a particular work does not form part of the accused person’s conduct constituting the extradition offences correlating to counts 4 to 8; and to conclude that proof of this is not required for the purposes of s 24(2)(d) of the Extradition Act 1999?
Answer: Yes. Copyright in a particular work was not part of the appellants’ conduct constituting the extradition offences alleged in counts 4–8 of the superseding indictment and it need not be proved for the purposes of s 24(2)(d) of the Extradition Act. Rather, it is a circumstance transposed when determining whether the offence is an extradition offence.
DThe remaining applications for leave to appeal on the questions of law raised by the appellants are declined.
EThe application for leave to appeal on the questions of law raised by the United States is declined.
FThe eligibility determination made by the District Court is confirmed. The District Court should now proceed without further delay to complete its duties under s 26 of the Extradition Act in accordance with the determination.
GThe appeal against Gilbert J’s decision to decline judicial review is dismissed.
HThe appeal in CA302/2015 is dismissed.
The parties are granted leave to file memoranda of no more than two pages in length, excluding the cover page, in relation to costs within 10 working days of the delivery of this judgment. The appellants are encouraged to file a joint memorandum.
____________________________________________________________________
REASONS OF THE COURT
table of contents
AINTRODUCTION [1]
The Megaupload business model [6]
BTHE ALLEGATIONS [6]
The United States charges [18]
Illustrations from the ROC [22]
COUR APPROACH TO THE APPEALS [23]
DTHE EXTRADITION ACT [26]
The statutory scheme [26]
Interpretation principles [59]
The Extradition Act’s legislative antecedents [60]
The New Zealand – United States Treaty [67]
Extradition in practice under the 1965 Act and the Treaty [72]
Parliamentary history of the Extradition Act [78]
EDOUBLE CRIMINALITY IN EXTRADITION BETWEEN NEW ZEALAND AND THE UNITED STATES [82]
Cullinane [82]
Interpretation [84]
Simplicity of extradition process [86]
The Treaty’s enumerative approach and double criminality [89]
The Treaty language and double criminality [90]
Reciprocity of New Zealand – United States extradition practice [94]
The position in other jurisdictions [96]
Conclusion: double criminality is required under the Extradition Act and the Treaty [104]
FDETERMINING ELIGIBILITY UNDER THE ROC PROCEDURE [105]
The Supreme Court decision in Dotcom [106]
A meaningful judicial process [107]
The Canadian cases on the ROC procedure [110]
The New Zealand committal process [115]
Transposition [124]
G ARE THE ALLEGED OFFENCES “EXTRADITION OFFENCES”? [133]
Analytical approach [133]
Copyright [135]
Judgment below [138]
Submissions [141]
Analysis [143]
Limitation [157]
Conspiracy [163]
Count 2 [170]
The essential conduct [170]
First pathway — Crimes Act, s 249 [173]
Second pathway — Crimes Act, s 228 [182]
Third pathway — Copyright Act, s 131 [186]
The Treaty [190]
Conclusion [195]
Counts 4–8 [196]
Count 3 [202]
The essential conduct [202]
Pathways available [204]
The Treaty [209]
Conclusion [211]
Counts 9–13 [212]
The essential conduct [212]
First pathway — Crimes Act, s 249 [215]
Second pathway — Crimes Act, s 228 [219]
Third pathway — Crimes Act, s 240 [221]
The Treaty [224]
Conclusion [225]
Count 1 [226]
The essential conduct [226]
Pathways available [227]
The Treaty [230]
Conclusion [231]
Conclusion: the offences are “extradition offences” [232]
HAPPLICATIONS FOR SPECIAL LEAVE TO APPEAL [233]
ADMISSIBILITY AND SUFFICIENCY OF THE ROC [237]
Was the ROC admissible? [239]
Alleged non-compliance with s 25(3): admissibility [240]
Alleged non-compliance with s 25(2): prescribed content [244]
Reliability and duty of candour [254]
Sufficiency of the evidence for committal [257]
Submissions [257]
Analysis [260]
Application for leave to adduce further evidence [263]
Conclusion on sufficiency [265]JTHE STAY APPLICATIONS [269]
The funding stay application [270]
The circumstances [271]
Application for leave to appeal [278]
Analysis [279]
The misconduct stay applications [286]
The circumstances [288]
Application for leave to appeal [292]
Analysis [293]KJUDICIAL REVIEW [304]
LSUMARY AND DISPOSITION [322]
Summary of conclusions [322]
Disposition [328]
AINTRODUCTION
The United States wishes to extradite the four appellants to face trial for criminal infringement of copyright in that country. Through a business known as Megaupload they are said to have breached, on a massive scale, copyright in commercially valuable property such as movies, games and music.
In 2015 the United States secured in the North Shore District Court a finding that the appellants are eligible for extradition.[1] That Court has completed its inquiry but has yet to report to the Minister of Justice, whose decision it ultimately is to surrender them. The District Court also dismissed applications for a stay of proceedings, which had been brought on the ground that the United States had deprived the appellants of the capacity to fund their defence and otherwise abused the extradition process.
The appellants brought a wide-ranging appeal against the District Court decision on questions of law. They also sought judicial review. They failed before Gilbert J.[2] They now bring this second appeal on two questions of law, by leave of the Judge.[3] They also seek special leave to appeal a large number of additional questions of law,[4] and they appeal the refusal of judicial review.[5] The United States also seeks special leave to appeal.[6] For completeness we record CA302/2015 is an appeal filed by Messrs Ortmann, van der Kolk, Dotcom and Batato against a judicial review decision of Katz J issued on 1 May 2015.[7] Before us the parties did not pursue this appeal and we are satisfied the concerns are similar to those in the other appeals and applications. We therefore dismiss that appeal.
The two questions of law on which Gilbert J granted leave are:[8]
(a)Was the High Court Judge correct to find that the essential conduct with which the appellants are charged in each count constitutes an extradition offence for the purposes of s 24(2)(c) of the Extradition Act 1999?
(b)Was the High Court Judge correct to conclude that copyright in a particular work does not form part of the accused person’s conduct constituting the extradition offences correlating to counts 4 to 8; and to conclude that proof of this is not required for the purposes of s 24(2)(d) of the Extradition Act 1999?
These questions raise some issues of general importance: whether double criminality is required in extradition between New Zealand and the United States, whether copyright infringement by disseminating infringing copies online can found an extradition offence, and how eligibility is determined under the record of case procedure in the Extradition Act 1999 (Extradition Act or 1999 Act).
BTHE ALLEGATIONS
The Megaupload business model
We here explain, by reference to the record of case (ROC), how Megaupload is said to have worked. Except where otherwise noted, we use “Megaupload” to include all the websites and businesses that the ROC describes. Besides Megaupload itself and Megavideo, which we discuss below, the enterprise included Megaporn, Megaclick, Megapix and several other sites.[9]
Megaupload provided file storage for its customers via its website. Its terms of service provided that users must not upload any files that infringed copyright, that they were responsible for anyone else who accessed their files, and that they indemnified Megaupload against liability. Uploaded files included movies, games, music, and other types of files such as computer software.
The United States’ case focuses on movies and we will use them to illustrate how files were uploaded and shared. A Megaupload user could upload a movie which had been ‘ripped’ from a DVD or otherwise illicitly obtained. (The United States’ case is that a DVD owner’s licence does not extend to copying, and certainly not to sharing the file with the public.) Megaupload would convert it and store it as a flash video (.flv) file. A file in that format can be played directly or streamed in an internet browser without needing to be downloaded. Copies were stored on multiple servers around the world, including a set located in the state of Virginia.
When the file was uploaded it would be given a unique identifier known as a MD5 hash. The user would be provided with a URL (uniform resource locator) link permitting the user to access that file. The user could share the link with anyone, but could not do so on a Megaupload site.
A movie stored on Megaupload could be viewed via Megavideo, a separate website that shared Megaupload’s database. Anyone who had the uploading user’s Megaupload link could view it via their browser, but they could not search directly for infringing movies on Megaupload or Megavideo, whose websites featured a “front end” of user‑generated content, much of it allegedly taken from YouTube, as well as trailers and demos freely available elsewhere on the Internet. Megaupload had search capability but it was for internal use only. Viewers accessed files stored on Megaupload via third-party or ‘linking’ websites that Megaupload did not control. So, for example, a member of the public who wanted to watch a given movie would search for it on an internet browser and be presented with a number of third-party websites that offered URL links, shared by Megaupload’s users, to copies of that movie stored on Megaupload’s servers.
Upon clicking on a link, the viewer would be taken to Megavideo and there presented with advertising, from which Megaupload earned revenue. The viewer could watch 72 minutes of the movie for free. To watch the balance — movies are usually longer than 72 minutes — the viewer would have to purchase a premium subscription from Megavideo. The United States says that more than 90 per cent of registered users made use of their account exclusively to view and download content.
Until June 2011 Megaupload ran a rewards programme that paid users, in cash or premium subscriptions, for uploading files that were much in demand for downloading. The United States says many of these files were popular because they were copyrighted and not otherwise freely available for online viewing or download. A small proportion of users uploaded many files in exchange for rewards. Some of these users were located in countries with a reputedly lax attitude toward copyright. For example, a person known as TH uploaded many infringing files between 2006 and 2011. He received reward payments of more than USD 50,000 and was the subject of 1200 take-down requests. In one six-month period links created by TH generated more than 10 million downloads.
Megaupload experienced enormous growth from 2008. It is said that the business earned revenues of more than USD 175 million and accounted at one point for four per cent of global internet traffic. The United States attributes this to the systematic infringement of copyright and says that copyright owners lost more than USD 500 million.
To save storage space on the servers, Megaupload engaged in a practice called deduplication. When a user uploaded a file which Megaupload identified as a copy of a file already held on its servers (because it had the same MD5 hash as an existing file), Megaupload would not store the file but would send the user a new link to the existing file. The United States case on this point, much disputed in this proceeding, is that files were treated as identical only when uploaded from the same source file. If another copy of the same movie was uploaded from a different DVD or computer, or even if a different rip of the DVD was created at a different time on the same computer, it would be given its own MD5 hash and stored as a separate file, because the time of its creation and other aspects of the algorithm used to generate the MD5 hash would vary from the earlier rip.
So, according to the United States, files that MegaUpload treated as duplicates were usually uploaded by the same user and would be based off the same rip. Some users uploaded the same file many times in anticipation of take-down requests from copyright owners. Each upload would receive a new link which could be offered to the public on linking websites. The United States argued that this process explains how multiple copies of the same copyrighted work were present on Megaupload’s servers, and also how a single user could receive multiple links (for sharing on third‑party websites) to the same file. The appellants said, in contrast, that even if many users uploaded many different rips from different DVDs (for example) Megaupload would only assign one MD5 hash. This is why the appellants said the approach they took to take-down requests was appropriate.
Copyright owners in the United States very frequently asked Megaupload to take down infringing files. A take-down notice would identify the copyright owner and their protected files, assert that they in good faith believed they had not authorised the recipient’s use of those files, specify that the notice was given pursuant to the relevant provisions of the Digital Millennium Copyright Act (DMCA),[10] and require the recipient to expeditiously remove or disable access to the files. The United States maintains that Megaupload did not respond by deleting or disabling access to infringing files. Rather, it would simply delete the link nominated in the take-down notice, leaving the file accessible via other links. The United States characterises this practice as deceptive, while the appellants maintain that it was standard industry practice, well known to copyright owners. This issue too has been the subject of much argument before us.
Megaupload also allowed users to embed videos directly in third-party websites if users provided those sites with URL links to the video files. This is said to have made it easier for users to watch videos on third-party websites. This practice is said to be inconsistent with the notion that Megaupload was a mere “cyberlocker” or file storage service.
The United States charges
The charges are found in a superseding indictment issued by a grand jury on
6 February 2012. They are brought under federal law in the United States District Court for the Eastern District of Virginia. The indictment contains 13 charges, all brought against the four appellants and others. Each is said to have been actively involved in the business: Mr Dotcom was the CEO and chief innovation officer (through other entities he also owned 68 per cent of Megaupload and all of Megavideo), Mr Ortmann was the chief technical officer (also owning 25 per cent of Megaupload) Mr van der Kolk was the chief programmer (also owning 2.5 per cent of Megaupload), and Mr Batato was the chief marketing and sales officer, responsible for generating advertising.The charges allege:
(a)conspiracy to commit racketeering (count 1);
(b)conspiracy to infringe copyright on a commercial scale (count 2);
(c)conspiracy to commit money laundering (count 3);
(d)using the proceeds of criminal copyright infringement, wilful infringement of copyright by distributing a specified work, the movie Taken (count 4);
(e)wilful infringement of copyright by reproducing more than 10 copies of works worth more than $2,500 over a series of 180-day periods (counts 5–8); and
(f)wire fraud by devising a scheme to obtain money by deceiving copyright owners into believing that take-down notices had been complied with (counts 9–13), each alleging a separate instance between 23 November 2010 and 10 August 2011.
Each count must be considered separately by the extradition court. Under the doctrine of specialty, which is reflected in the Extradition Act and the Treaty on extradition between New Zealand and the United States of America (the New Zealand – United States Treaty or the Treaty),[11] the United States may charge an extradited person with only those crimes for which extradition was granted.[12] However, in company with Gilbert J we begin with count 2, which best encapsulates the claim that the appellants are criminally responsible for the behaviour of Megaupload’s users. Counts 4–8 allege specific instances of infringement and counts 1, 3 and 9–13 address behaviour that gave effect to the conspiracy, framing it as instances of other specific offences such as racketeering or wire fraud.
We address the counts in detail below, but for present purposes it suffices to consider count 2. Count 2 charges the appellants with conspiring with one another to distribute pirated works to the public over a computer network, for money. They are accused not merely of having joined the conspiracy with a common design of committing an offence but also of having put it into effect in numerous ways which are particularised at length.[13] At its heart the conspiracy rests upon the claim that Megaupload was designed to encourage and profit from unlawful infringement while sheltering behind a pretence that it was a mere storage provider, or as one of the appellants put it, “a dumb pipe”.
Illustrations from the ROC
The appellants stand accused for their active participation and intimate knowledge of this scheme. By way of illustration, the ROC summarises evidence, much of it in the form of communications among them, that:[14]
(a)They directly monitored traffic from linking sites to Megavideo:
On or about April 15, 2008, via Skype:
[van der Kolk]: almost 18,000,000 video views on MRV per day, and also a wopping 6,000,000 on MV now.
[Ortmann]: amazing … wow.
[van der Kolk]: MV had nice growth during the past 2 months, probably piracy in embedded players…
(b)They monitored uploads by and provided reward payments to serial infringers:
On or about November 18, 2007, via Skype:
[van der Kolk explained] … that a particular repeat infringer and unindicted conspirator [VF] … “created a second account … and within 19 days a 1500 USD redemption.”
[Ortmann]: amazing. We are very, very lucky to have him as an uploader … Those 1500 USD are multiplied by a factor of 10 at least …
(c)They were aware that Megaupload’s revenue was substantially attributable to infringing content:
On or about October 7, 2007, via Skype:
[van der Kolk]: maybe we should automatically delete videos on Megavideo that are longer than 30 minutes and have more than XXX views or something because I still see so much piracy that is being embedded … What kind of videos are legit and longer than 30 minutes and views more than XXX times.
[Ortmann]: what we can indeed do is put them into ‘temporarily not available’ state and priority-audit them. Anything that’s legit will then be unblocked permanently, the rest will go to deleted.
[van der Kolk]: yeah but 99.999% will be deleted then.
…
On or about January 25, 2008, via Skype …
[Ortmann]: he [an uploader] probably has 100% fraudulent files in his account.
[van der Kolk]: most likely, that’s the big flaw in the rewards program — we are making profit of more than 90% infringing files. So either we should just lower the points a bit and pay everybody, or stop paying rewards… I assume with this rewards payment Kim wants to be very generous?
[Ortmann]: yes, but only for those users that brought premium sales :)
…
On or about March 7, 2009, via Skype:
[van der Kolk]: if copyright holders would really know how big our business is they would surely try to do something against it, they have no idea that we’re making millions in profit every month.
[Ortmann]: indeed.
(d)They monitored the quality of infringing files and tried to ensure that high‑definition copies were available for viewing:
On or about March 3, 2009, via Skype:
[van der Kolk] sent [Ortmann] the results of a search for the term “1080p” in the Mega database. The term “1080p” refers to high-definition video, which typically contains 1080 lines of progressively vertical resolution. The search showed that the term appeared in more than 41,000 separate files …
[Ortmann]: yes :) but with HD video, we’ll easily need 50 gigs more already, but we’ll also be MUCH more popular/valuable … I just wonder what warner bros. will say when they see crystal clear BD rips instead of the usual blurry video :)
[van der Kolk]: yeah will be even more pissed off :)
(e)They sought to conceal the presence of infringing material by ensuring that Megavideo was not searchable and making its “front end” appear innocuous:
On or about October 10, 2009, via Skype:
[van der Kolk]: theoratically we could make MV just like MU, remove all the video listing stuff.
[Ortmann]: yep, but even better than that, we list only really harmless stuff.
[van der Kolk]: yes, but problem is almost no harmless stuff is being uploaded to MV :) … We should actively add youtube videos again perhaps
[Ortmann]: yes, we could do that indeed … Kim’s [Mr Dotcom’s] idea of leaving the semi-harmful stuff online for 23 hours is also pretty good.
[van der Kolk]: yes also not bad, but then there will always still be harmful content on the site always … I would say we should not even make it public at all … we make money from direct links & embedded, no need to risk anything.
[Ortmann]: harmful content isn’t bad per se as long as we process takedowns and don’t upload it ourselves.
[van der Kolk]: that we already do now even :)
[Ortmann]: it has a positive effect in that it allows content owners to search our site and send takedown requests.
[van der Kolk]: but it’s good to stay off the radar by making the front end look like crap while all the piracy is going through direct links & embedded.
[Ortmann]: the important thing is that nobody must know that we have auditors letting this stuff through.
[van der Kolk]: yes that’s very true also.
[Ortmann]: if we had no auditors — full DMCA [Digital Millennium Copyright Act] protection, but with tolerant auditors, that would go away.
[van der Kolk]: yes true.
(f)They responded selectively to take-down notices depending on their perception of legal risk:
On or about April 23, 2009:
[Dotcom] sent an email message to [Messrs van der Kolk, Ortmann, and Bencko, another member of the alleged conspiracy] in which he complained about the deletion of URL links deleted in response to infringement notices from the copyright holders.
[Dotcom]: I told you many times not to delete links that are reported in batches of thousands from insignificant sources. I would say that those infringement reports from Mexico of ‘14,000’ links would fall into that category. And the fact that we lost significant revenue because of it justifies my reaction.
…
On or about April 23, 2009, via Skype:
[Ortmann]: maybe try undeleting them :)
[van der Kolk]: you want to risk that? I mean MX [this is said to mean Mexico] is just MX, we could ignore them
[Ortmann]: it’s not like Mexico is going to sue us in Hong Kong … just for testing, we should undelete those files, for one day, we can excuse it as a tech glitch.
[van der Kolk]: I often ignore reports from certain countries, such as VN [this is said to mean Vietnam].
COUR APPROACH TO THE APPEALS
We will answer the questions on which leave was granted as follows:
(a)Because Gilbert J’s answer to the first question rested in part on the proposition that double criminality is not required in extradition between New Zealand and the United States, we survey the legislation and decide whether United States of America v Cullinane, in which this Court held that it was not, was correctly decided.[15]
(b)We examine the task of determining eligibility under the ROC procedure, which allows us to answer the second question.
(c)We then answer the first question, deciding as we do so whether copyright infringement by digital dissemination may found an extradition offence.
(d)We respond to the special leave applications, which concern whether the evidence was admissible and sufficient in law and whether the stay applications ought to have been granted.
(e)We decide the judicial review appeal.
We are indebted to Gilbert J for his careful analysis and for isolating what we agree are the relevant questions of law. We approach the case differently because he was obliged to follow Cullinane and, as will be seen, we have decided to overrule it. We largely agree with his view of the case, with the exception of the narrow copyright pathway to extradition. That being so, we need not discuss his reasons in detail.
On 24 April 2018 Mr Illingworth QC for Messrs Ortmann, van der Kolk and Batato sought leave to file submissions in these extradition appeals addressing matters raised in CA12/2018.[16] Messrs Ortmann, van der Kolk and Batato are not parties in CA12/2018. The United States urged us to decline to receive the submissions. We are satisfied CA12/2018 will sufficiently deal with matters raised by Mr Illingworth, and it would be inconsistent with this Court’s previous directions to deal with those issues here.[17] We decline leave to file these submissions.
DTHE EXTRADITION ACT
The statutory scheme
As just noted, the appeal requires that we consider whether Cullinane was wrongly decided. It also requires that we examine, for the first time so far as this Court is concerned, how eligibility is determined under the Extradition Act when a ROC is relied upon. So we must survey the legislation and examine its antecedents in extradition law.
We begin with the Extradition Act’s provisions, so far as relevant to this case. The long title records its purpose: “to consolidate and amend the law relating to the extradition of persons to and from New Zealand”. Consolidation refers to the fact that until 1999 New Zealand’s extradition law was found in the Extradition Act 1965 (1965 Act) and the Fugitive Offenders Act 1870 (Imp). The 1999 Act’s object, recorded in s 12, is to provide for the reciprocal extradition of accused or convicted persons and, in particular, to enable New Zealand to honour its obligations under extradition treaties. The object reflects three salient features of extradition: it is a reciprocal process between states and of mutual benefit to them, it is governed partly by treaty, and it affects citizens and non-citizens alike.
A person is extraditable if accused of having committed an “extradition offence” against the law of the requesting “extradition country”. Extradition countries are classified according to which of the Extradition Act’s processes applies to them. The United States falls into pt 3, which covers Commonwealth states and those with which New Zealand has entered treaties that have been made the subject of an Order in Council.[18]
It is necessary to set out the definition of ‘extradition offence’ in full:
4 Meaning of “extradition offence”
(1)In this Act, extradition offence means, subject to an extradition treaty,—
(a)in relation to an extradition country, an offence punishable under the law of the extradition country for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty, and which satisfies the condition in subsection (2);
(b)in relation to a request by New Zealand, an offence punishable under the law of New Zealand for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty.
(2)The condition referred to in subsection (1)(a) is that if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had occurred within the jurisdiction of New Zealand at the relevant time it would, if proved, have constituted an offence punishable under the law of New Zealand for which the maximum penalty is imprisonment for not less than 12 months or any more severe penalty.
The Extradition Act expressly adopts the principle of double criminality, meaning that the conduct of the person constituting the offence in the extradition country must also have been, at the time of the conduct, an offence punishable by a minimum of 12 months’ imprisonment in New Zealand. As will be seen, the Extradition Act also provides that in any given case double criminality is to be judicially determined.
We observe that double criminality is a central feature of international extradition law.[19] It rests on two central concepts: reciprocity between states and protection of the citizen’s liberty from detention for conduct which the requested state does not consider criminal.[20] It justifies, by reference to the substantive and evidential standards of domestic law, a state’s entry into arrangements authorising the detention of its citizens and their removal to face trial elsewhere.[21]
The Extradition Act also adopts the ‘eliminative’ approach to classification of extradition offences,[22] meaning that it includes all offences attracting the qualifying maximum penalty. The alternative ‘enumerative’ approach, which was adopted in the 1965 Act,[23] lists a series of specific offences.[24] As will be seen, the New Zealand – United States Treaty, which was entered in 1970, also adopts an enumerative approach.
The definition is expressed to be “subject to an extradition treaty”. The question this raises is whether, as the Court held in Cullinane, a treaty’s classification of extradition offences may replace s 4, including the express requirement for double criminality, or whether, as English law traditionally held, a treaty may reduce but not enlarge upon the offences for which the statute would permit extradition. We return to this point at [61]–[62] below.
The term “conduct constituting the offence”, which is used in s 4(2), receives a definition in s 5:
5 Interpretation provisions relating to offences
(1)A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
(2)In making a determination for the purposes of section 4(2), the totality of the acts or omissions alleged to have been committed by the person must be taken into account and it does not matter whether under the law of the extradition country and New Zealand—
(a) the acts or omissions are categorised or named differently; or
(b) the constituent elements of the offence differ.
It will be seen that the Extradition Act focuses on the totality of the person’s acts or omissions and specifies that there need not be a match between the requesting state’s offence and a New Zealand offence. This conduct-centred approach ensures that the extradition process is practical and not overly technical, and avoids difficulties that might arise if the relevant offences under domestic and foreign law are not perfectly identical.[25]
Part 3 of the Extradition Act may be applied to treaty countries by Order in Council.[26] It may also be extended to non-treaty countries by Order in Council, and in that case the order may be made subject to “limitations, conditions, exceptions, or qualifications” specified in the order.[27]
Section 11 deals with construction of treaties, enjoining those administering the Extradition Act, including the courts, to interpret the Act to give effect to a treaty in force between New Zealand and the extradition country:
11 Construction of extradition treaties
(1)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.
However, no treaty may be construed to “override” certain provisions, including importantly s 24(2)(d), which provides that an extradition court must be satisfied that a prima facie case would be made out on the evidence “if the conduct constituting the offence had occurred” in New Zealand, and any provision conferring a particular function or power on the Minister or a court:[28]
(2) Despite subsection (1), no treaty may be construed to override—
(a) section 7; or
(b) section 24(2)(d) or section 45(5); or
(c)subsection (2)(b) or subsection (3)(a) of section 30 (including where those provisions are applied under section 49); or
(d)any provision conferring a particular function or power on the Minister or a court.
A request for extradition under pt 3 is transmitted by diplomatic means to the Minister. It must be accompanied by duly authenticated supporting documents, being an arrest warrant and a written deposition describing the offence (and its penalty) and the conduct constituting the offence.[29] In this case the Treaty also provides that the request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable requesting state laws defining the offence and prescribing the punishment and fixing any limitation of the legal proceedings, an arrest warrant issued by a judicial officer, and such evidence as according to the laws of the requesting state would justify the person’s arrest and committal for trial.[30] It is for the Minister to be satisfied that these obligations have been met.[31] The Minister may then ask a District Court judge to issue an arrest warrant here and the judge may do so if there are reasonable grounds to believe the person is extraditable and the offence is an extradition offence.[32]
The Extradition Act provides that the District Court must then decide whether the person is eligible for surrender for extradition.[33] The Court goes about it by conducting a committal hearing under the Summary Proceedings Act 1957, which survives its repeal for this purpose:[34]
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 committal 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 to 12), 2, and 4 of the Bail Act 2000:
(iii)the Criminal Procedure (Mentally Impaired Persons) Act 2003.
…
The appellants have sought a stay of the extradition proceeding for abuse of process by the United States. In Siemer v Solicitor-General the Supreme Court held that a court has such implied powers as it needs to act effectively and uphold the administration of justice within its jurisdiction, and this extends to dismissing or staying proceedings that abuse the court’s processes.[35] We accept that such implied powers may be found in s 22 of the Extradition Act. In Bujak v Republic of Poland this Court found that the District Court may exercise in extradition proceedings the “very limited” jurisdiction described in Police v D to refuse to conduct a hearing that would plainly be an abuse of the District Court’s own processes.[36] The Court rejected a submission that the jurisdiction extends to considering the fairness of the trial to be held overseas.[37] And in Dotcom v United States of America (Dotcom (SC)) the Supreme Court recognised that extradition courts possessed any implied powers that were necessary to protect their processes from abuse or to ensure a fair hearing, albeit the majority concluded that the particular power at issue in that case (an implied power to order disclosure) was not necessary.[38]
Eligibility is determined by a four-step process:
(a)Step 1: the supporting documents submitted with the diplomatic request for extradition must be produced to the extradition court. It will be recalled that these describe the conduct and identify the requesting state offence:[39]
(a)the supporting documents (as described in section 18(4)) in relation to the offence have been produced to the court; and
The Court must also receive any other document that a treaty requires be produced to it. The Treaty envisages that the documents referred to above at [39] will be produced, since they inform the eligibility determination.[40]
(b)Step 2: the extradition court must decide that the offence is an extradition offence:[41]
(c)the court is satisfied that the offence is an extradition offence in relation to the extradition country …
(c)Step 3: the extradition court must decide that the evidence meets the committal standard:[42]
(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;
…
(d)Step 4: the extradition court assesses whether any mandatory or discretionary restrictions on surrender apply.[43]
We observe that at step 1 the requesting state documents that were submitted to the Minister must be produced but the court is not required to make a decision about them. The court uses the documents when making the decisions required of it at steps 2–4.
We have noted that an extradition offence is defined as a qualifying offence under the laws of both countries. At step 2, however, the court does not ordinarily inquire into the requesting state offence. As Lord Millett explained in R (Al‑Fawwaz) v Governor of Brixton Prison, the requirement that the conduct be an offence in the requesting state serves a “purely practical purpose”; there is no point in extraditing a person who cannot be tried in the requesting state.[44] Responsibility for satisfying that requirement rests with the Minister, who must consider the requesting state documents before asking the District Court to issue an arrest warrant. At the extradition hearing the court examines the second limb of the definition: whether the conduct of which the person is accused would be an offence in New Zealand. This requirement protects the person from what Lord Millett described as “the exercise of an exorbitant foreign jurisdiction”.[45] We return to this topic below at [124], when dealing with transposition.
At step 2 the court also considers any applicable extradition treaty. It does so because, as we explain in subsequent sections of this judgment, an extradition treaty may preclude or qualify extradition for conduct that would make out a given domestic offence.
At step 3, the committal standard in New Zealand is whether the admissible evidence, if accepted, could reasonably satisfy a properly directed trier of fact of the defendant’s guilt.[46] This is a question of judicial judgement. When answering it a court must recognise that in all but the most unusual or extreme circumstances it is for the trier of fact — here, the requesting state’s court — to decide whether evidence is credible or reliable and to determine the defendant’s guilt or innocence.[47] We return to this topic below at [112], when dealing with the determination of eligibility under the ROC procedure.
Step 4 concerns restrictions on surrender. The person is ineligible for surrender if he or she satisfies the court that s 7 (mandatory restrictions on surrender) or s 8 (discretionary restrictions) applies.[48] Section 7 lists important restrictions such as the political character of the requesting state offence and s 8 provides that it may be unjust or oppressive to surrender the person where the case is trivial, or the accusation has been made in bad faith, or too much time has passed since the offence was allegedly committed. These provisions establish an express judicial power to address an alleged abuse of extradition process by the requesting state. It is now common ground that s 7 does not apply in this case. In the District Court Mr Dotcom invoked s 8, alleging that it would be unjust to surrender him because of the fugitive disentitlement doctrine applied to him in the United States,[49] but that claim was not pursued on appeal, the appellants all preferring to invoke the implied power to stay for abuse. We return to this point below at [286], when dealing with the stay applications. For completeness, we note that under s 24(3)(b) a person is also ineligible if he or she can satisfy the court that surrender would not be in accordance with an extradition treaty, but that provision is subject to s 30(2)(ab), under which the Minister decides whether a mandatory restriction on surrender that is imposed by treaty applies to the person.[50] The appellants did not invoke s 24(3)(b).
The United States has been designated an exempted country under s 17, meaning that it may rely on s 25, which permits the extradition country to rely on a ROC for purposes of committal, though it need not do so and may also adduce evidence in addition to the ROC. We observe in passing that reciprocity of this more expedient process is one of the criteria for exemption.[51]
The ROC must contain a “summary of the evidence acquired to support” the surrender request and “other relevant documents”, and it must be prepared by a person having the status of a prosecutor or investigating authority in the requesting country:
25Record of case may be submitted by exempted country at hearing
…
(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;
The ROC is admissible if it was prepared by or under the authority of a prosecutor, the evidence has been preserved for use at the trial, and in the opinion of a person having control over the decision to prosecute,[52] the ROC discloses “the existence of evidence” that suffices under the exempted country’s law to put the person on trial:[53]
(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.
Part 9 of the Extradition Act contains other provisions relating to evidence. Notably:
(a)s 74 allows an extradition court to receive evidence from the person to show that ss 7 or 8 apply, if the court considers the evidence reliable;
(b)s 75 deems depositions taken overseas and official certificates of conviction or other facts to be admissible if duly authenticated;
(c)s 76 provides that without limiting s 25, a hearsay statement made and contained in a deposition taken outside New Zealand is admissible as evidence of a fact or opinion that it tends to establish; and
(d)s 78 provides that courts must take judicial notice of signatures or judicial seals on certain requesting state documents requiring authentication.
If it finds the person eligible for surrender, the extradition court records the extradition offence or offences for which eligibility has been established and sends its advice to the Minister along with the evidence and other material. The court may provide the Minister with such report as it thinks fit. It also issues a warrant for the person’s detention.[54] The District Court has not yet taken these steps in this case, pending this appeal.
It is then the task of the Minister to decide under s 30 whether the person is to be surrendered. Available grounds for denying extradition include compelling personal circumstances and the existence of discretionary grounds under s 8.
It is necessary to outline the appellate jurisdiction because the appellants maintain that the High Court could not address the substantive merits or remedy deficiencies in the District Court process. The Extradition Act confers limited appeal rights, consistent with the status of an extradition hearing as a committal proceeding only. An appeal lies to the High Court on a question of law by way of case stated.[55] Appeals may not be brought on the ground of improper admission or exclusion of evidence.[56] The High Court’s powers jurisdiction and powers are found in s 72, which allows the Court to reverse, confirm or amend the determination and make any other order affecting it that the Court thinks fit:
72 Powers of court on appeal
(1)The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:
(a)reverse, confirm, or amend the determination in respect of which the case has been stated:
(b)remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:
(c)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:
(d)make any other order in relation to the determination that it thinks fit.
(2)In hearing and determining the question or questions of law arising on any case transmitted to it, the court—
(a)must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and
(b)may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.
We draw attention to the legislation’s limits upon appeals founded on new evidence or evidence that was improperly included or excluded.[57]
Under s 73(3) the High Court need not reverse or amend a determination made in error if it considers that no substantial wrong or miscarriage of justice has been done and the determination ought to be upheld:
(3)Despite subsections (1) and (2), if an appeal is against a determination that a person is eligible for surrender, and the court determines that there has been an error of law, it may nevertheless decline to reverse or amend the determination in respect of which the case has been stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld.
This short survey of the appellate jurisdiction establishes plainly that the High Court may have regard to the substantive merits of the case for extradition and its powers are wide enough to remedy any deficiency in the lower court process.
This Court’s powers on further appeal are found in s 144 of the Summary Proceedings Act. Appeal on a question of law is by leave of the High Court or, if leave is refused, this Court. The criterion for leave is whether the question ought, by reason of general or public importance or for any other reason, to be submitted to this Court for decision. This Court has the same power to adjudicate on the proceeding that the High Court had.
We conclude this survey by noting pt 4, which applies to Australia and other designated countries but does not presently include the United States. Under that part the extradition court must decide that the offence is an extradition offence but the person may not adduce evidence to contradict an allegation that he or she has engaged in conduct constituting the offence for which surrender is sought. We are not presently concerned with the interpretation of these provisions, but it is relevant to note that the legislature has created a statutory process that further simplifies extradition for designated countries but retains double criminality by requiring that the court identify an extradition offence under s 4.
Interpretation principles
We pause to note some relevant principles of interpretation that inform our analysis of the Extradition Act and the Treaty:
(a)It is a principle of extradition law that a substantive, purposive approach is needed to ensure the extradition process is practical and workable. The Extradition Act itself expressly confirms this.[58]
(b)Interpretation must be cognisant of the New Zealand Bill of Rights Act 1990 (BORA). Extradition does not engage the BORA right to a fair trial, because the trial is a matter for the foreign state and comity demands that the domestic court focus on the committal process.[59] However, it does engage the liberty of the subject, an interest which underpins a number of specific BORA rights, such as the right to freedom of movement, the right not to be arbitrarily arrested or detained and the right to natural justice.[60]
(c)The Extradition Act states that it must be interpreted consistently with any relevant extradition treaty, as already noted,[61] and the Treaty must also be given a generous and purposive effect.[62]
The Extradition Act’s legislative antecedents
In our opinion the Extradition Act’s interpretation is significantly informed by an understanding of its predecessors. New Zealand’s extradition law can be traced directly to two Acts of the Westminster Parliament:
(a)the Extradition Act 1870 (Imp) (1870 Act), which dealt with extradition requests from countries outside the British Empire and its dominions;[63] and
(b)the Fugitive Offenders Act 1881 (Imp), which dealt with extradition requests from British colonies or dominions, the rationale being that they formed part of a single state for extradition purposes.[64]
The first of these statutes applied in New Zealand until the 1965 Act was passed,[65] and the second until the 1999 Act was passed.[66]
The 1870 Act contained an express double criminality requirement from its inception. An offender could only be extradited for an offence which could be mapped to one of a set list of English offences in a schedule to the Act and assuming that the conduct alleged had occurred within the jurisdiction of the English courts.[67] The Act delegated to the executive the power to extend it to treaty countries by Order in Council. Reflecting the principle that delegated legislation may not without antecedent legislative authority interfere with the operation of the statute, the legislation expressly authorised additional limits; its application to any given treaty country might be “subject to such conditions, exceptions, and qualifications as may be deemed expedient”.[68] Lord Diplock explained in Government of the Federal Republic of Germany v Sotiriadis that:[69]
Since effect may not be given under the Act to treaties which are not in conformity with its provisions, one finds the main provisions of the Act reflected in the extradition treaties; though … the language in which they are expressed may not follow the precise wording of the Act itself and the treaty may also contain restrictions additional to those provided in the Act itself.
In Re Neilsen, Lord Diplock returned to the topic, observing that a treaty could not expand upon the 1870 Act’s list of crimes for which extradition might be granted but could impose additional limits upon the extradition of fugitives from the state concerned.[70] We note in passing that s 16 of the 1999 Act, dealing with extension to non-treaty countries, is in similar terms.
New Zealand enacted its own extradition regime with the 1965 Act (although the Fugitive Offenders Act continued to apply to Commonwealth countries).[71] The 1965 Act authorised its extension to treaty countries by Order in Council but specified that any treaty was to be read subject to certain provisions of the Act.[72] Section 2 defined an “extradition offence” as:
In relation to any foreign country, means any act or omission which, if it occurred in New Zealand, would be one of the crimes described in the First Schedule to this Act, and which amounts to one of the offences described in the extradition treaty with that country and is punishable in that country and also includes conspiring, attempting or being an accessory after the fact to such an offence.
It will be seen that the 1965 Act incorporated double criminality using the enumerative approach, listing in a schedule the New Zealand offences against which the alleged act or omission was to be gauged as if the conduct had occurred here. The definition also provided that an extradition offence must also be described in the relevant state’s extradition treaty. Thus a treaty might curtail but not enlarge upon the offences for which extradition was available under the statute.
The definition colours the meaning of s 3(4), which provided that where a treaty existed and the Act had been applied to the relevant state by Order in Council:
Except as provided in subsection (3) of this section [restrictions on surrender], this Act shall be read subject to the terms of the treaty and shall be so construed as to give effect to its terms.
It will be seen that this language is essentially identical to s 11(1) of the 1999 Act.
The direction that the 1965 Act should be read subject to the terms of the treaty cannot be taken to override the definition of ‘extradition offence’. That is so because the definition expressly established how a treaty might bear on the classification of extradition offences. When applied to the definition, “subject to the treaty” accordingly recognises that the treaty may qualify the definition. In ordinary usage “subject to” need not connote that one thing is subordinate to another. It may mean, in context, that the one may be affected by the other.[73] To interpret it in the latter way in this example is to avoid what would otherwise be a conflict with the definition and to restrict the statutory injunction to a statement of principle, consistent with what we take to have been Parliament’s intention. We find support for that conclusion in the balance of s 3(4), in which legislative expression was given to the principle that a purposive approach is required in extradition practice. Further support is found in the explanatory note to the Extradition Bill, which stated that the intention was to replicate the 1870 Act but address certain difficulties (such as the need to translate English offences into their New Zealand equivalents) that complicated extradition practice.[74]
The New Zealand – United States treaty
The New Zealand – United States Treaty was given effect under the 1965 Act by an Order in Council that took effect on 8 December 1970.[75] It recites that the parties desire to make more effective their co-operation for the reciprocal extradition of offenders and records in art I that:
Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II of this Treaty committed within the territory of the other.
Article II comprises a list of extradition offences corresponding to those in the 1965 Act. Like the 1965 Act, it describes offences in what Lord Diplock called “generic” terms, using “general terms and popular language” rather than specific definitions.[76]
Article IV provides that extradition shall be granted only if the evidence be found sufficient to justify committal for trial under the requested state’s law:
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 VI sets out mandatory restrictions on surrender which broadly align with those found in the Extradition Act.[77] We draw attention to art VI.3 however, which deals with limitation periods for prosecutions (and which we return to below at [157]–[162]):
Extradition shall not be granted in any of the following circumstances:
…
3.When the prosecution or the enforcement of the penalty for the offence has become barred by lapse of time according to the laws of the requesting Party or would be barred by lapse of time according to the laws of the requested Party had the offence been committed in its territory.
…
Article IX further states that the extradition decision, which in New Zealand is that of the Minister, is to be made in accordance with the laws of the requested party:
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 resources as are provided by such law.
Extradition in practice under the 1965 Act and the Treaty
Such authority as there is under the 1965 Act mostly reflects an assumption that double criminality was required in cases involving the United States. For example, in Re Translateur, where the United States sought the extradition of a Colombian woman for drug offences,[78] this Court noted in 1982 that:[79]
It is not in dispute that at least some of the offences are extradition offences as defined in the New Zealand Act and if committed in New Zealand would be drug dealing offences as defined in s 10 of the Misuse of Drugs Amendment Act 1978.
In Mewes v Attorney-General, a 1979 case in which it was held that s 3(4) did not dictate that authentication requirements under the Treaty prevailed over those in the Act, Chilwell J held:[80]
It would surprise me if the constitutional law of this country is that the Treaty of 1970 somehow amended the 1965 Act of the New Zealand Parliament. All that s 3(4) does is to enact a rule of construction which encourages the fulfilment of international obligations rather than the reverse.
In D’Cunha v United States, a 1997 High Court decision dealing with the different definitions of sodomy under United States law and New Zealand law (both before and after homosexual law reform), Giles J held that s 5(2) of the 1965 Act protected double criminality.[81] Section 5(2), which was not subject to a treaty, provided that an accused could not be extradited to be charged in the requesting state with offences that were not extradition offences. Giles J reasoned that because it used the term “extradition offence”, s 5(2) mandated that (as much as possible domestically) a person could only extradited to the requested country based on offences that can be mapped to New Zealand offences.[82]
In Yuen Kwok-Fun v Hong Kong Special Administrative Region of the People’s Republic of China, a 2001 decision, a Full Court of this Court considered whether discretion to refuse extradition on humanitarian grounds under the 1965 Act lay with the District Court or the Minister.[83] For the Court, Keith J observed that s 3(4) (now s 11 of the 1999 Act) contemplates that a treaty may override the legislation, explaining that:[84]
The process which s 11 of the [1965 Act] requires can perhaps be better thought of as reconstruction of the Act, to the extent it is inconsistent with the treaty, to make it consistent. The strength of the direction recognises the basic principles of international law that treaties must be complied with and that a state cannot invoke its internal law to justify its failure to perform a treaty...
However, the Court was not there concerned with the definition of extradition offence and its relationship to treaties. It was addressing the statutory allocation of functions between the court and the Minister. Speaking of what is now s 11(2)(d), which preserves from override any provision conferring a particular function or power on the Minister or a court, Keith J simply observed that conflict is unlikely since treaties seldom address such matters.[85]
It is convenient to note here that in the following year the Court decided Edwards v United States under the 1999 Act and expressly refrained from commenting on the question whether s 4(2) and its rule of double criminality applied to the New Zealand – United States Treaty.[86] The question in that case was whether the United States charges — essentially, theft — sufficiently corresponded to the now‑archaic treaty offences of larceny or embezzlement. The Court held that they did, emphasising that treaties must be interpreted in a liberal manner and with the purpose of bringing serious offenders to justice in mind, explaining that this rule applies to extradition treaties partly because they have long lives during which national offence definitions may alter, and adding that because the United States is a federation, treaties must incorporate the law of more than 50 jurisdictions.[87]
Parliamentary history of the Extradition Act
As we have already noted, the Extradition Act uses the eliminative approach to define extradition offences. The explanatory note to the Extradition Bill indicates that this was done so the legislation need not be updated as new offences were created:[88]
This list or “enumerative” approach is now regarded internationally as being outdated. The preferred approach, known as the “eliminative” approach, is instead to describe the offences for which extradition can be granted by reference to a minimum penalty. The main advantages of this approach are to reduce the risk of offences being inadvertently excluded from the Act and to allow any new offences that are created and have the requisite penalty to be automatically regarded as extraditable offences.
The note also explained (when outlining the characteristics of extradition offences) that double criminality is required.[89] It contains nothing to suggest that the Bill was intended to detract from this principle; and specifically, nothing to suggest that the executive branch might override double criminality by treaty. On the contrary, it reinforced the need for a “bottomline”:[90]
While the Bill aims to ensure that alleged offenders can be surrendered expeditiously, it also sets a “bottomline” as to the circumstances in which extradition may occur. This helps to protect the alleged offender’s basic human rights, given that the person is threatened with removal from the safety of a state where he or she has committed no offence.
The clauses that became ss 4(1) and 11(1) were amended at the Select Committee stage. The Report of the Foreign Affairs, Defence and Trade Committee explains that this was done to clarify the relationship between treaties and the statute.[91] The Regulations Review Committee had prompted this change, seeking to limit any power to amend the statute by subordinate legislation.[92] The resulting provisions were designed, the Select Committee explained, to establish a “general principle” that the Extradition Act was to be construed to give effect to a treaty and to deal more comprehensively with the ways in which a treaty could not override the Act.[93]
We conclude that nothing in the legislative record suggests an intention to change existing law regarding double criminality. To do so by leaving it to treaty negotiators rather than the courts would be a very significant step even if they were thought unlikely to compromise the principle that domestic law should protect the liberty of the subject. The change to the definition of extradition offence is explicable by the adoption of an eliminative approach. Broadly consistent with that, the legislation adds further protection from treaty override. The 1965 Act provided that treaties must be read subject to subss (1) to (5) of s 5, which dealt with what are now mandatory restrictions on surrender. The 1999 Act retains those but also protects from treaty “override” judicial and ministerial functions and powers and, as already noted, s 24(2)(d). This brings us to Cullinane.
EDOUBLE CRIMINALITY IN EXTRADITION BETWEEN NEW ZEALAND AND THE UNITED STATES
Cullinane
In Cullinane the United States sought extradition for visa fraud, racketeering, alien smuggling and harbouring, all offences arising from a scheme to have Australasian truck drivers enter the United States to work there contrary to immigration law. The question was whether these were extradition offences.[94] The District Court held the appellant ineligible on some charges, and the High Court on others. The United States’ appeal to this Court was dismissed.
The High Court had followed the Extradition Act’s three-part test (conduct said to establish a) requesting state offence mapped to b) qualifying domestic offence and c) treaty offence). During argument, this Court inquired whether the
New Zealand – United States Treaty classification replaces s 4, so eliminating b), the double criminality requirement. Further submissions were called for. As it turned out, counsel for both parties agreed that the Treaty prevailed.[95] In the result, the Court did not have the benefit of the thorough argument for which we are indebted to counsel, and particularly Mr Illingworth, in this case. We turn to the Court’s reasons.
Interpretation
The Court’s principal reason was that the definition of extradition offence in s 4 of the Extradition Act is subject to the Treaty under the definition itself and s 11. It followed that if the conduct is an offence under the Treaty no further inquiry is required.[96] With the benefit of full argument, we have reached the conclusion that under the 1965 Act, which contained materially similar language, double criminality was required and treaties were incorporated into the definition because they might further restrict extradition, and we do not find in the 1999 Act any intention to depart from that policy.[97]
We find support for our conclusion in s 24(2)(d), which is protected under s 11 and requires that the prima facie case be assessed against the extradition offence as if the conduct had taken place in New Zealand. The interpretation adopted in Cullinane, in which sufficiency of evidence was not in issue, required that these words be read down, confining them to an affirmation that domestic rules of procedure and evidence apply.[98] But to confine the paragraph in that way is to make surplus the words “if the conduct constituting the conduct had occurred … [in] New Zealand”, since the paragraph provides separately that the evidence is to be assessed according to the law of New Zealand.
Simplicity of extradition process
The Court observed that it is unlikely that any conduct made an extradition offence under the Treaty is not also an offence under the laws of both nations. It followed that the principal consequence of holding that the treaty prevails is that the extradition process is made considerably simpler.[99]
There is force in these propositions, but as noted above it is a significant step to delegate authority over the definition to negotiators. And the treaty-only approach need not simplify the inquiry, as this case regrettably demonstrates. Under the usual four-step test the extradition court’s task is in principle simple and squarely within its expertise: it decides whether the conduct alleged, if proved at trial, would make out the elements of a qualifying domestic offence. The treaty definition must also be satisfied, but it is usually expressed in general terms and serves as a filter, screening out any offences that the treaty excludes.[100]
By contrast, the treaty-only approach focuses the attention of the extradition court upon the task of interpreting the treaty to ascertain whether it should prevail over the s 4 definition, and then upon a treaty offence which is likely to be listed without explanation or definition, which may not correspond exactly to a domestic offence, and which may be archaic. Because it must measure conduct against offence elements the court needs some frame of reference to decide what the treaty means by (for example) the single word “murder”. So the court will tend to fix the elements of treaty offences by reference to domestic law in any event.[101] The treaty‑only approach may also lead, as it has in this case, to attempts to invoke the requesting state’s law when defining treaty offences.[102]
The Treaty’s enumerative approach and double criminality
The Court reasoned that while treaties and statutes employing the eliminative approach almost invariably adopt double criminality expressly, as the Extradition Act does, those using the enumerative approach may or may not do so.[103] We agree that statutes and treaties employing double criminality normally adopt it expressly, as the Extradition Act does, but it is normally express or implicit in those using the enumerative approach too, for the reasons given above at [61]–[66]. As Ivan Shearer puts it, “[t]he basic rule observed by the enumerative and ‘no list’ treaties alike is the rule of double criminality”.[104]
The Treaty language and double criminality
The Court reasoned that the Treaty expressly employs double criminality in connection with only one specified offence, that of unlawful sexual connection with children under the age specified by the law of both parties, and so indicates that double criminality is not otherwise required. The Court cited the 1933 United States Supreme Court decision in Factor v Laubenheimer for the proposition that double criminality is not required in a treaty that employs the enumerative approach and speaks expressly of double criminality in connection with only some of the listed offences.[105] Factor is notable for dissents by Butler, Brandeis and Roberts JJ, and it was and remains controversial in the United States,[106] but the judgment remains law and we were told that the Supreme Court has often refused to revisit it.
The list of extradition offences in art II corresponds generally to offences that were or are recognised by New Zealand law. Those relevant to this appeal are arts II.16 and II.19, which we examine later and the concluding words of art II, which extend extradition to conspiracy to commit any of the listed offences. We are presently concerned, however, with the question of whether the Treaty generally excludes double criminality. Two articles are relevant to that question. Article II.7, which was discussed in Cullinane, lists sexual offences upon children under the age of consent according to the law of both parties.[107] In his article on Factor, Professor Hudson reviewed the history of treaty provisions specifying that behaviour must be an offence by the law of both countries and concluded persuasively that such language merely recognises that certain behaviour may not always be punishable by the laws of both states.[108] Viewed in that light, the language simply reinforces the need for double criminality. In this instance, the Treaty presumably speaks in this way because the age of consent may differ between New Zealand and some United States jurisdictions.[109]
Article II.30, which was not discussed in Cullinane, comprised offences against the bankruptcy laws which are punishable by more than three months’ imprisonment. Because that penalty is less than 12 months, this provision appears to admit offences which would be excluded by the Extradition Act’s definition. But it does not follow that the Treaty was intended to expand upon the legislation. The Treaty predates the Extradition Act and the 1965 Act took enumerative form. We record that Mr Raftery QC, for the United States, also submitted that the relevant offence under the Bankruptcy Act 1967 was punishable by two years’ imprisonment if charged indictably and suggested that the maximum specified in the treaty was presumably adopted because the offence was punishable by three months’ imprisonment if charged summarily.
We conclude that nothing in the Treaty conflicts with s 4. It follows, as a matter of construction of s 4, that no question arises of the Treaty displacing the statutory definition.
Reciprocity of New Zealand – United States extradition practice
Reciprocity is a central principle of extradition law, so it is relevant to inquire whether United States courts would insist on double criminality when considering extradition to New Zealand. In Factor the United States Supreme Court held that double criminality did not apply under the treaty then in force between the United States and Great Britain,[110] but the decision is treaty-specific.[111] Our attention was drawn to no decision in which a United States court has interpreted the Treaty to exclude double criminality.
Broadly to the contrary, some United States courts and commentators have drawn from Factor support for the proposition that double criminality is a central principle of extradition law against which treaties ought to be interpreted. Briefly, Mr Factor happened to have been detained in the state of Illinois, which did not recognise the requesting state offence of receiving money knowing it to have been fraudulently obtained. The Supreme Court majority noted that this offence was generally recognised by the laws of both nations and found it undesirable that a person might find refuge in a United States domestic jurisdiction, the laws of which were relevantly idiosyncratic.[112] In Shapiro v Ferrandina the Court of Appeals for the Second Circuit highlighted these observations when treating Factor as treaty and offence-specific.[113] The Court added that “at least the broad elements of double criminality … ordinarily remain a prerequisite for extradition.”[114]
The position in other jurisdictions
Mr Illingworth drew our attention to authorities in which English courts interpreted language similar to that of s 24(2)(d) of the 1999 Act to mean that double criminality was required under the 1870 Act. We have already mentioned Sotiriadis and Neilsen.[115] One further example may be given. In R v Governor of Pentonville Prison, ex parte Sinclair the House of Lords reiterated that the task of the extradition judge is to determine whether the conduct alleged is an offence at English law.[116]
Significantly, the Canadian authorities do not appear to have been cited in Cullinane. The leading case is United States of America v McVey.[117] The legislation, modelled on the 1870 Act, defined an extradition crime as any crime that, if committed in Canada, would be a crime under Canadian law and would be one of the crimes listed in the Act or in the relevant treaty (the latter being designed not to supplant the legislative list but to ensure that new offences could be added without amending it).[118] The treaty in issue stated that people would be extradited for any of a list of crimes, provided those crimes were punishable by the laws of both countries.[119] The Court stated that the task of the extradition judge was that of identifying the equivalent Canadian crime and deciding whether the conduct established that crime according to Canadian law. A majority held that it was not for the judge to decide whether the conduct was also an offence under United States law; that is a treaty obligation and treaties are administered by the executive.[120] When identifying the equivalent Canadian crime the court should not interpret treaty expressions, such as “forgery” or “conspiracy”, according to the laws of either country but rather should recognise that these terms are used in a generic and comprehensive sense.[121] Speaking generally of extradition, La Forest J, for the majority, said:[122]
Some perspective may be gained through reflection on what an extradition treaty is. It is an agreement between two sovereign states whereby each agrees to surrender on request persons alleged to have committed crimes in the state requesting the surrender. To this general obligation, states frequently attach terms and conditions. When a request is made, the political authorities in the requested state will examine the material to see that the request complies with these terms and conditions. The treaties also make provision for the requesting state to supply certain material whereby the requested state can determine the validity of the request and its compliance with the terms and conditions of the treaty … and it is reasonable that these are the materials to be looked at in determining the issue. In essence, the treaty obligations are a political character to be dealt with in the absence of statute by the political authorities. However, … the liberty of the individual has not been forgotten in these rather special proceedings. The treaties, sensitive to the liberty of the individual, contain provisions for their protection. Most important is the requirement that there be prima facie evidence that the act charged would constitute a crime in Canada. This specific matter, about which judges are most competent, is the task assigned to a judge by the Extradition Act.
Citing McVey, the Supreme Court later held in United States of America v Dynar that:[123]
One of the most important functions of the extradition hearing is the protection of the liberty of the individual. It ensures that an individual will not be surrendered for trial in a foreign jurisdiction unless, as previously mentioned, the Requesting State presents evidence that demonstrates on a prima facie basis that the individual has committed acts in the foreign jurisdiction that would constitute criminal conduct in Canada.
The position in Australia appears to be different. In Riley v Commonwealth of Australia, which this Court followed in Cullinane,[124] the High Court of Australia held that language corresponding to that found in s 24(2)(d) was purely evidentiary.[125] The Extradition (Foreign States) Act 1966 (Cth) permitted extradition where the conduct, were it to happen in Australia, would constitute one of the offences against Australian law listed in a schedule. The definition provided that a foreign state offence was an extradition crime:[126]
… if, and only if the act or omission constituting the offence or the equivalent act or omission, or, where the offence is constituted by two or more acts or omissions, any of those acts or omissions or any equivalent act or omission, would, if it took place in … the part of Australia where the person … is found, constitute an offence against the law in force in that part of Australia [that is listed in a Schedule to the Act] …
The schedule listed “an offence against the law relating to dangerous drugs, narcotics or psychotropic substances.”[127]
The appellant was actually charged with a continuing criminal enterprise in connection with narcotics, an offence under the United States Criminal Code that was not known to Australian law. The High Court held that it was nonetheless an extradition crime. This conclusion is unremarkable, but the majority reached it by holding that the statutory definition did not require that the conduct also be an offence in Australia. They reasoned that a single act was an extradition crime even if it formed only one of a number of acts needed for a composite offence that was an offence in the requesting state only, and accepted a submission for the Commonwealth of Australia that this entailed rejection of double criminality.[128] The legislation required that the extradition judge must assess whether the evidence would justify trial for the foreign offence — continuing criminal enterprise — had the conduct occurred in the domestic jurisdiction and whether or not those acts would constitute a domestic crime.[129]
It may have been thought necessary to interpret the legislation in this way because the appellants argued that the treaty did not extend to continuing criminal enterprise either. They contended that to apply the relevant treaty offence would be to depart from the principle of double criminality. The majority responded by noting that domestic statutes and international treaties may be so framed as to permit extradition for conduct which is an offence only in the requesting state, citing Factor.[130] Having concluded by reference to the definition that double criminality was excluded, the Court further reasoned that the provision requiring that evidence be adduced that would justify trial had the conduct happened in Australia — s 17(6)(b)(i) — did not affect the definition and accordingly was limited to matters of evidence.[131]
Writing separately, Deane J held that the principle of double criminality is one of substance rather than technical form and it is satisfied if the conduct concerned is criminal under both systems even if the offences have different names and elements. This being so, the statutory definition did not exclude double criminality. To the contrary, it gave statutory effect to the principle, when properly understood to mean that the acts and omissions would necessarily involve an offence against Australian law if they had happened there.[132] He agreed, however, that s 17(6)(b)(i) was purely evidentiary.[133]
The New Zealand legislation expressly adopts double criminality in s 4 and further makes it clear in s 5(2)(b) that the elements of the foreign and domestic offences need not match. It is not necessary to read down s 24(2)(d) to reconcile it with the definition. The words can be given their ordinary meaning, connoting double criminality. Accordingly, we respectfully decline to follow Riley.
Conclusion: double criminality is required under the Extradition Act and the Treaty
Recognising value in legal certainty, this Court departs only for good reason from its previous decisions.[134] There are two reasons for doing so in this case: first, with benefit of full argument, we are satisfied that as a matter of interpretation double criminality is required under the Extradition Act and the New Zealand – United States Treaty; and second, its omission is undesirable for both reasons of both policy, since it supplies the policy justification for the person’s arrest and extradition, and practicality, since it also supplies a familiar and relatively straightforward test of eligibility for extradition courts. Cullinane is accordingly overruled. If it thinks fit, the legislature may exclude double criminality for the United States by amending the Extradition Act. Alternatively, the United States may be added by Order in Council to those countries to which pt 4 applies, which would not eliminate double criminality but would simplify the eligibility determination.
FDETERMINING ELIGIBILITY UNDER THE ROC PROCEDURE
We introduce this topic by summarising what was said about it in Dotcom (SC), in which the Supreme Court adopted the concept of a “meaningful judicial process” in extradition.[135] We then discuss Canadian authority on what such a process requires when a ROC is used, before applying the concept to the Extradition Act and briefly addressing the issue of transposition.
The Supreme Court decision in Dotcom
In Dotcom (SC) the Supreme Court rejected a claim that Mr Dotcom was entitled to general disclosure in this extradition proceeding, but it took the opportunity to discuss the task of the extradition court generally. For our purposes, the following propositions emerge from the majority judgments:
(a)Care is needed when applying statutory provisions that the drafter has incorporated into other legislation; in this case, those parts of the Summary Proceedings Act that were incorporated into the Extradition Act. Delivering the principal judgment,[136] McGrath and Blanchard JJ observed that the drafter finds incorporation convenient but it may force courts to work out adjustments to meet the legislative purpose.[137] The extradition context, including considerations of comity and reciprocity, requires that some features of an extradition hearing differ from those for a domestic law committal.[138] Making substantially the same point, William Young J observed that the question was whether disclosure, which was arguably available under the Summary Proceedings Act, was “necessary to the proper performance of the function of an extradition court.”[139]
(b)The extradition hearing is to be a “meaningful judicial process” in which the subject of the application has a fair opportunity to contest the requesting state’s claim that the evidence makes out a prima facie case.[140]
(c)The ROC procedure does not alter the test of eligibility under s 24. It allows the requesting state to rely on a summary of the evidence, rather than its detail, as the basis for a prima facie case.[141] It was negotiated between states on a reciprocal basis,[142] and is intended to accommodate differences in legal systems that can give rise to difficulties in extradition proceedings.[143] Specifically, it excludes domestic admissibility rules.[144] Reliance is placed on certification, which requires that a degree of trust be placed in a requesting state’s prosecutors.[145]
(d)The ROC must include a summary of the material relied on but need not summarise all evidential material that the requesting state may rely upon at trial. Nor, subject to its duty of candour, need the requesting state copy or summarise all exculpatory material.[146]
[21]United States of America v McVey [1992] 3 SCR 475 at 518–519 per La Forest J; and United States of America v Dynar [1997] 2 SCR 462 at [121].
[22]Extradition Act 1999, s 4(2).
[23]Extradition Act 1965, s 2, definition of “extradition offence” and sch 1.
[24]The difference between the eliminative and enumerative approach is helpfully explained in Shearer, above n 19, at 133–137.
[25]Edwards v United States of America [2002] 3 NZLR 222 (CA) at [27]; and Riley v Commonwealth of Australia [1985] 159 CLR 1 at 17 per Deane J.
[26]Extradition Act 1999, s 15.
[27]Section 16.
[28]Section 11(2).
[29]Section 18.
[30]New Zealand – United States Treaty, art X.
[31]R v Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 AC 64 (HL) at 91–92 [Sinclair]; and McVey, above n 21, at 518–519 per La Forest J.
[32]We record that a challenge to the adequacy of grounds for issuing the warrants in this case has been struck out in the High Court and an appeal has been heard separately in this Court. See Dotcom v District Court at North Shore, above n 16.
[33]Extradition Act 1999, s 24(1).
[34]These provisions survive for extradition purposes although the domestic committal regime has been abolished under the Criminal Procedure Act 2011: Extradition Act 1999, s 22(4). At the time this proceeding was commenced the Extradition Act 1999 had not been amended to reflect these changes however.
[35]Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [114].
[36]Bujak v Republic of Poland [2007] NZCA 392, [2008] 2 NZLR 604 at [65]; citing Police v D [1993] 2 NZLR 526 (CA).
[37]At [66].
[38]Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [160] per McGrath and Blanchard JJ and [227] per William Young J [Dotcom (SC)].
[39]Extradition Act 1999, s 24(2)(a).
[40]New Zealand – United States Treaty, art X.
[41]Extradition Act 1999, s 24(2)(c).
[42]Section 24(2)(d).
[43]Sections 24(3) and 24(4).
[44]R (Al-Fawwaz) v Governor of Brixton Prison [2001] UKHL 69, [2002] 1 AC 556 at [95].
[45]At [95].
[46]Police v D, above n 36, at 529.
[47]Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [14].
[48]Extradition Act 1999, ss 24(3) and 24(4).
[49]The fugitive disentitlement doctrine is helpfully explained by Ellis J in Dotcom v Deputy Solicitor‑General [2015] NZHC 1197, [2016] NZAR 229 at [12]–[16] and [74]–[79].
[50]Extradition Act 1999, ss 24(3)(b) and 30(2)(ab).
[51]Section 17(2).
[52]Section 25(3A). The person may be the principal law officer of the requesting state, or their delegate, or a person having lawful control over the decision to prosecute. Judicial notice must be taken of the signature: s 25(5).
[53]Section 25(3).
[54]Section 26.
[55]Section 68.
[56]Section 69(1)(b).
[57]Sections 69(1)(b) and 72(2)(a).
[58]Section 5.
[59]Dotcom (SC), above n 38, at [115] per McGrath and Blanchard JJ and [211] per William Young J.
[60]New Zealand Bill of Rights Act 1990, ss 18, 22, 23 and 27. See also Dotcom (SC), above n 38, at [118] per McGrath and Blanchard JJ, [212] per William Young J and [281] per Glazebrook J; Ferras v United States of America 2006 SCC 33, [2006] 2 SCR 77 at [14]; and Claudia Geiringer and Paul Rishworth “Magna Carta’s Legacy? Ideas of Liberty and Due Process in the New Zealand Bill of Rights” (2017) NZ L Rev 597.
[61]Extradition Act 1999, s 11.
[62]Edwards, above n 25, at [25]–[28].
[63]Extradition Act 1870 (Imp) 33 & 34 Vic c 52.
[64]Fugitive Offenders Act 1881 (Imp) 44 & 45 Vic c 69.
[65]Extradition Act 1908, s 2; and Extradition Act 1965, s 20(1).
[66]Extradition Act 1999, s 112(2).
[67]Extradition Act 1870, s 26, definition of “extradition crime”.
[68]Section 4(2). Section 12 of the Fugitive Offenders Act 1881 was in materially identical terms.
[69]Government of the Federal Republic of Germany v Sotiriadis [1975] AC 1 (HL) at 24.
[70]Re Neilsen [1984] 1 AC 606 (HL) at 616.
[71]R v Riley [1985] 2 NZLR 242 (CA).
[72]Extradition Act 1965, s 3(3).
[73]Bryan A Gardner (ed) Black’s Law Dictionary (10th ed, Thomson Reuters, St Paul, 2014), definition of “subject”.
[74]Extradition Bill 1965 (75–1) (explanatory note) at i–ii.
[75]Extradition (United States of America) Order.
[76]Re Neilsen, above n 70, at 615. The list in the Extradition Act 1965 has since been eliminated by statute. However, under s 101B of the Extradition Act 1999 certain “transnational” crimes are now deemed to be included in the New Zealand – United States Treaty. We discuss those applicable to this case at [190]–[194] and [227]–[230] below.
[77]Compare Extradition Act 1999, s 7; and New Zealand – United States Treaty, art VI.1 and VI.4.
[78]Re Translateur [1982] 1 NZLR 700 (CA).
[79]At 700–701.
[80]Mewes v Attorney-General [1979] 1 NZLR 648 (HC) at 665–666.
[81]D’Cunha v United States of America HC New Plymouth M24/97, 24 June 1997.
[82]At 12–13.
[83]Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] 3 NZLR 463 (CA).
[84]At [16].
[85]At [18]. We do not need to decide whether this Court’s decision on the way s 11 of the Extradition Act 1999 operates should be revisited in light of the Canadian and English authorities discussed in this judgment, but we observe that those authorities do not appear to have been cited to the Court.
[86]Edwards v United States of America, above n 25, at [14].
[87]At [25]–[29].
[88]Extradition Bill 1999 (146–1) (explanatory note) at iii.
[89]At iii and v.
[90]At iii.
[91]Extradition Bill (146–1) (select committee report) at iii.
[92]Letter from Arthur Anae (Deputy Chairperson, Regulations Review Committee) to Derek Quigley (Chairperson, Foreign Affairs, Defence and Trade Committee) regarding the Report of the Regulations Review Committee: Extradition Bill (31 August 1998) at 2.
[93]Extradition Bill (146–1) (select committee report) at iii.
[94]Cullinane, above n 15, at [4].
[95]At [49].
[96]At [53], [55] and [63].
[97]See above at [66] and [81].
[98]Cullinane, above n 15, at [65].
[99]At [64].
[100]Edwards, above n 25, at [27]; Re Neilsen, above n 70, at 624–625; McVey, above n 21, at 549; and G V La Forest Extradition to and from Canada (2nd ed, Canada Law Book, Toronto, 1977) at 42 and 56–58.
[101]Re Neilsen, above n 70, at 614–615; and Manley O Hudson “The Factor Case and Double Criminality in Extradition” (1934) 28 AJIL 274 at 280–281.
[102]This practice has been criticised in both England and Canada, and is not permissible in either jurisdiction: Sinclair, above n 31, at 91–92; and McVey, above n 21, at 518–520.
[103]Cullinane, above n 15, at [50]–[52].
[104]Shearer, above n 19, at 137.
[105]Factor v Laubenheimer 290 US 276 (1933).
[106]Hudson, above n 101, at 301–306; and Shearer, above n 19, at 144: in “Factor v Laubenheimer the United States Supreme Court seems … to have misconceived the true application of the double criminality rule”.
[107]Cullinane, above n 15, at [61].
[108]Hudson, above n 101, at 292–295.
[109]At 296. We note that the age of consent in California for example is 18: CA Penal Code § 261.5(a).
[110]Factor, above n 105, referring to The Webster – Ashburton Treaty, Great Britain – United States of America (signed 9 August 1842, entered into force 15 October 1842).
[111]Shearer states that, “the decision was … expressly limited to the question of treaty construction”. Shearer, above n 19, at 145.
[112]Factor, above n 105, at 298–301. Shearer suggests that the case could have been resolved by reasoning that the conduct concerned would if proved amount to obtaining money by false pretences, which was a crime in Illinois: Shearer, above n 19, at 145. This possibility was also mentioned in the dissenting judgment: Factor, above n 105, at 308. If so, the difficulty that concerned the majority would be addressed in New Zealand by s 5 of the Extradition Act 1999.
[113]Shapiro v Ferrandina 478 F 2d 894 (2nd Cir 1973).
[114]At 911.
[115]Sotiriadis, above n 69; and Re Neilsen, above n 70.
[116]Sinclair, above n 31.
[117]McVey, above n 21.
[118]Extradition Act RSC 1970, s 2, definition of “extradition crime”.
[119]Extradition Treaty between Canada and the United States of America CTS 1976 No 3 (signed 3 December 1971, entered into force 22 March 1976), art 2.1.
[120]McVey, above n 21, at 510–511 and 518–519.
[121]At 551–552.
[122]At 518–519 (citations omitted).
[123]Dynar, above n 21, at [121].
[124]Cullinane, above n 15, at [60] and [65].
[125]Riley v Commonwealth of Australia, above n 25.
[126]Extradition (Foreign States) Act 1966 (Cth), s 4(1A).
[127]Schedule 1, cl 34.
[128]Riley v Commonwealth of Australia, above n 25, at 4–5, and 8.
[129]At 8–9.
[130]At 12, citing Factor, above n 105.
[131]At 9.
[132]At 17–20.
[133]At 21.
[134]R v Chilton [2006] 2 NZLR 341 (CA) at [84].
[135]Dotcom (SC), above n 38, at [184].
[136]The judgment was that of McGrath and Blanchard JJ. William Young J agreed generally with it (at [202]).
[137]At [163].
[138]At [192].
[139]At [228].
[140]At [181] per McGrath and Blanchard JJ, [229] per William Young J and [284] per Glazebrook J.
[141]At [25] per Elias CJ, [133] per McGrath and Blanchard JJ and [256] per Glazebrook J.
[142]At [139]–[141] per McGrath and Blanchard JJ.
[143]At [25] per Elias CJ and [133] per McGrath and Blanchard JJ.
[144]At [244] per William Young J.
[145]At [142] per McGrath and Blanchard JJ.
[146]At [195] per McGrath and Blanchard JJ and [270] per Glazebrook J.
[147]Ferras, above n 60.
[148]At [22]–[26].
[149]Dotcom (SC), above n 38.
[150]The background is discussed in Anne Warner La Forest “The Balance Between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings” (2002) 28 Queen’s LJ 95 at 136.
[151]Extradition Act 1999, s 25(3); and Extradition Act SC 1999, ss 32(1)(a) and 33(3).
[152]Extradition Act 1999, s 24(2)(d); and Extradition Act SC 1999, s 29(1)(a).
[153]Extradition Act 1999, s 43(1)(b); and Extradition Act SC 1999, s 24(2).
[154]Extradition Act SC 1999, s 32(1)(c). The Act is explicit that this evidence is admissible even if it would not normally be admissible under Canadian law.
[155]The Extradition Act 1999 also provides in s 74 that the subject may adduce evidence gathered from outside New Zealand, whether admissible or not, directed to the mandatory and discretionary restrictions on surrender in ss 7 and 8.
[156]Ferras, above n 60, at [33].
[157]At [52].
[158]At [66].
[159]At [57].
[160]At [53].
[161]MM v United States of America 2015 SCC 62, [2015] 3 SCR 973.
[162]At [10].
[163]At [41] and [44]–[48].
[164]At [214].
[165]At [22]–[24]. This observation must be qualified in New Zealand: see ss 22, 24(3) and 24(4) of the Extradition Act 1999, and particularly the implied power to stay proceedings for abuse in s 22. In MM, above n 161, the Court also recognised (at [79]) that the court may, exceptionally, admit evidence that is not strictly relevant to committal but which may inform the Minister, and we note that the District Court may report to the Minister under s 26(1)(c) of the Act.
[166]At [46].
[167]At [45].
[168]At [47].
[169]At [63].
[170]At [74].
[171]At [77].
[172]At [78].
[173]Under the Summary Proceedings Amendment Act (No 2) 2008.
[174]Summary Proceedings Act, ss 177 and 184M.
[175]Sections 162, 178 and 180.
[176]Sections 168 and 184A.
[177]Extradition Act 1999, s 25(4).
[178]Section 76.
[179]Section 25(3).
[180]Ferras, above n 60, at [55].
[181]Extradition Act SC 1999, s 33(3). We note for completeness that the certification under Canadian law appears to require either that the evidence is sufficient to commit for trial in the requesting state or that it was gathered according to the requesting state’s law, a difference from the Extradition Act 1999.
[182]Summary Proceedings Act, ss 176 and 178. If notice was not given the court might exclude the evidence or adjourn the hearing: s 184H. Where oral evidence is permitted, witnesses may give evidence by audio-visual link: Courts (Remote Participation) Act 2010, ss 5, 6 and 9.
[183]Summary Proceedings Act, s 176. Only if any oral evidence order was made would there be a hearing for a domestic committal: s 183. See also Carroll v District Court at Nelson HC Nelson CIV-2009-442-509, 22 December 2009 at [13]; and Pandey-Johnson v District Court at New Plymouth HC New Plymouth CIV-2010-443-508, 30 November 2010 at [59].
[184]Summary Proceedings Act, s 180(1).
[185]Where the proposed evidence does not go to sufficiency, the court may admit it under s 180(1)(a)(ii) of the Summary Proceedings Act.
[186]We note that, though s 184F of the Summary Proceedings Act speaks of the sufficiency of the prosecution’s evidence, this Court has emphasised the judge’s assessment at the committal stage does nonetheless consider all the evidence: W v Attorney-General [1993] 1 NZLR 1 (CA) at 8.
[187]Germany (Federal Republic) v Schreiber (2006) 264 DLR (4th) 211 (ONCA) at [46].
[188]Al-Fawwaz, above n 44, at [107].
[189]We are not concerned with the case where, as in Al-Fawwaz, extradition is sought for an offence that had not been committed in that country.
[190]Al-Fawwaz, above n 44, at [109] per Lord Millet; and Tarling v Government of the Republic of Singapore (1980) 70 Cr App R 77 (HL) at 136 per Lord Keith.
[191]Re Collins (No 3) (1905) 10 CCC 80 (BCSC) at 103.
[192]Schreiber, above n 187, at [38]–[43].
[193]Griffiths v United States of America [2005] FCAFC 34, (2005) 143 FCR 182.
[194]At [86].
[195]Re Collins (No 3), above n 191. The case was decided under the Extradition Act 1870 (Imp). The Court heard evidence of Californian law before reaching this conclusion. It would not have been necessary to hear such evidence in modern practice, which, as we have explained, does not require that the court consider whether the conduct makes out the requesting state offence.
[196]At 103.
[197]Schreiber, above n 187, at [42]; and La Forest, above n 100, at 53–54.
[198]Shearer, above n 19, at 137–138.
[199]Schreiber, above n 187, at [45].
[200]At [43].
[201]Al-Fawwaz, above n 44, at [109] per Lord Millett.
[202]Schreiber, above n 187, at [43].
[203]Griffiths, above n 193, at [86]. We express no view on the proposition, made in the same paragraph, that the extradition judge must be satisfied that the type of work pirated be capable of copyright protection in Australia.
[204]At [85].
[205]In case we should be wrong, we are also satisfied that this is not a case in which the record could possibly be considered so deficient as to merit closer examination of the evidence to be called at trial. See below at [252].
[206]Re Neilsen, above n 70, at 621.
[207]At 625. Under the Extradition Act 1999 the political character of the offence may be considered at step 4 of the eligibility determination.
[208]McVey, above n 21, at 502–505.
[209]Sinclair, above n 31.
[210]Re Neilsen (1983) 79 Cr App R 1 (CA).
[211]Re Neilsen, above n 70.
[212]Sinclair, above n 31, at 91–92.
[213]See above at [45].
[214]HC judgment, above n 2, at [191].
[215]Copyright Act 1994, s 16(1)(f).
[216]HC judgment, above n 2, at [181].
[217]At [182].
[218]At [183]–[184].
[219]At [185].
[220]At [191].
[221]It should be noted, however, that “distribution” does not feature as an exclusive right in s 16, and nor did it in s 7 of the Copyright Act 1962.
[222]See above at [6]–[17].
[223]See Gillian Davies, Nicholas Caddick and Gwilym Harbottle (eds) Copinger and Skone James on Copyright (17th ed, Sweet & Maxwell, London, 2016) vol 1 at [2-39]–[2‑40].
[224]Copyright Act 1994, s 2(1).
[225]At the same time, the extended definition of “copying” in s 2 of the Copyright Act which included “storing” any “literary, dramatic, musical, or artistic work … by any means” was repealed.
[226]Copyright Act, ss 2(1), 29 and 30.
[227]Copyright Act 1962, s 2.
[228]Copyright Bill 1994 (32-1) (explanatory note) at i.
[229]Dixon v R [2015] NZSC 147, [2016] 1 NZLR 678.
[230]Ross Carter Burrows and Carter: Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 413.
[231]Ministry of Economic Development Digital Technology and the Copyright Act 1994: Position Paper (December 2002) at [37]–[38].
[232]At [37], n 7.
[233]At [39].
[234]Power Beat International Ltd v Attorney-General [2000] 2 NZLR 288 (CA).
[235]At [13].
[236]Copyright (New Technologies and Performers’ Rights) Amendment Bill 2006 (102-1) (explanatory note) at 3.
[237]Copyright Act, s 131(1)(c).
[238]Repealed by s 413 of the Criminal Procedure Act, with effect from 1 July 2013.
[239]HC judgment, above n 2, at [299]–[300].
[240]At [301]. See above at [69].
[241]See Radish v Police HC Auckland CP11089/90, 30 July 1990. Different forms of information for summary proceeding and indictment are specified in sch 2 to the Summary Proceedings Act.
[242]Section 10B(2) prescribes a 10-year limitation period for fine-only offences less than $2,000, or those with a maximum imprisonment term less than three years. Section 131 of the Copyright Act prescribes a maximum penalty of five years’ imprisonment.
[243]There was only brief reference in the Parliamentary debates to s 131A. The speaker (who was not the Minister responsible) referred to the amendment extending the time for laying an information summarily. He said nothing about whether the three-year time limit in that provision was also to apply to charges laid by indictment: (19 November 2002) 604 NZPD 2343–2345.
[244]Gemmell, above n 13, at 743.
[245]Churchill v Walton [1967] 2 AC 224 (HL) at 237.
[246]Simon France (ed) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [CA310.07] (citations omitted).
[247]See above at [156].
[248]See below at [187].
[249]HC judgment, above n 2, at [83]–[111].
[250]World TV Ltd v Best TV Ltd HC Auckland CIV-2005-404-1239, 13 July 2005.
[251]See for example Scott v Metropolitan Police Commissioner [1975] AC 819 (HL); Rank Film Distributors Ltd v Video Information Centre [1982] AC 350 (HL); and in obiter Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 (CA).
[252]HC judgment, above n 2, at [111] citing R v Walters [1993] 1 NZLR 533 (CA) at 537.
[253]A fourth pathway, art II.16 of the New Zealand – United States Treaty, has since fallen away owing to our reversal of the decision in Cullinane, above n 15. We therefore deal with it no further here. Similarly, the United States’ reliance on art II.19 as providing a pathway for count 3, and on art II.16 for counts 4–13, is no longer live. We therefore say nothing further about those pathways.
[254]HC judgment, above n 2, at [168].
[255]At [166].
[256]At [166] (emphasis in original).
[257]At [165].
[258]At [141].
[259]At [192].
[260]See above at [143]–[156].
[261]Norris v Government of the United States of America [2008] UKHL 16, [2008] AC 920 at [91] (emphasis added).
[262]See above at [148].
[263]Dixon, above n 229.
[264]At [25] and [31].
[265]HC judgment, above n 2, at [138].
[266]See above at [143]–[156].
[267]United Nations Convention against Transnational Organised Crime (opened for signature 15 November 2000, entered into force 29 September 2003), art 2(a).
[268]Article 2(b).
[269]HC judgment, above n 2, at [150].
[270]At [151].
[271]At [153]–[159].
[272]At [160].
[273]At [196].
[274]At [196].
[275]At [201].
[276]At [197].
[277]At [198].
[278]At [198].
[279]At [200]–[201].
[280]See R v Nichols [1998] 1 NZLR 608 (HC).
[281]Crimes Act 1961, ss 243–245.
[282]Section 247(a).
[283]The Queen v Keenan [1967] NZLR 608 (CA) at 609; and Regina v Seymour [1954] 1 WLR 678 (Crim App).
[284]HC judgment, above n 2, at [209]–[212].
[285]See below at [252].
[286]HC judgment, above n 2.
[287]See above at [173]–[181].
[288]HC judgment, above n 2, at [229].
[289]At [229].
[290]At [230].
[291]Crimes Act, s 217.
[292]See above at [182]–[185].
[293]HC judgment, above n 2, at [220]–[222].
[294]At [224].
[295]At [237].
[296]HC leave judgment, above n 3, at [30].
[297]See above at [132] and [232].
[298]There was some degree of overlap due to the different phrasing of the questions by Mr Dotcom and Messrs Ortmann and van der Kolk.
[299]Another question posed by the appellants was whether Gilbert J was wrong to determine he had authority to confirm as correct the judgment of the court below on grounds that were substantially inconsistent with the grounds that had been relied on by the lower court. This was dealt with from [54] above.
[300]See above at [143]–[156].
[301]See above at [57].
[302]See also the examples given above at [22].
[303]HC leave judgment, above n 3, at [39].
[304]See above at [14].
[305]Dotcom (SC), above n 38.
[306]United States of America v Chavez (2013) ABQB 347, (2013) 107 WCB (2d) 259 at [18]–[20].
[307]Counts 1–3.
[308]See above at [165].
[309]See above at [132].
[310]See above at [108].
[311]See Dotcom (SC), above n 38, at [152].
[312]At [195] per McGrath and Blanchard JJ and [262]–[265] per Glazebrook J.
[313]At [152] per McGrath and Blanchard JJ, and [265] per Glazebrook J.
[314]See above at [122].
[315]A procedure where copyright owners could themselves disable URL links they considered provided access to infringing content.
[316]See above at [114].
[317]See above at [54]–[56].
[318]See R v Harris CA121/06, 27 September 2006 at [66]–[68].
[319]HC leave judgment, above n 3, at [46]–[48].
[320]Commissioner of Police v Dotcom [2012] NZHC 634.
[321]Commissioner of Police v Dotcom, above n 320.
[322]Commissioner of Police v Dotcom [2012] NZHC 2190.
[323]Commissioner of Police v Dotcom [2015] NZHC 458; Commissioner of Police v Dotcom [2015] NZHC 761 (results only); and Commissioner of Police v Dotcom [2015] NZHC 820 (reasons).
[324]United States of America v All Assets Listed in Attachment A 89 F Supp 3d 813 (ED Va 2015).
[325]See decision of Katz J, above n 7, at [118].
[326]We explain the relevant facts more fully below at [315]–[317].
[327]HC judgment, above n 2, at [521].
[328]HC leave judgment, above n 3, at [45]–[48].
[329]For example: Dotcom (SC), above n 38, at [184] per McGrath and Blanchard JJ.
[330]Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [40].
[331]Allegations about denial of access to funding also feature in the misconduct stay application. We have already addressed these in the previous section.
[332]The two stay applications were dealt with together: see below at [315]–[317].
[333]HC judgment, above n 2, at [553].
[334]HC leave judgment, above n 3, at [45]–[48].
[335]HC judgment, above n 2, at [548]–[552].
[336]Police v D, above n 36; and Bujak, above n 36.
[337]Siemer, above n 35; Dotcom (SC), above n 38; and Regina (Government of the United States of America) v Bow Street Magistrates’ Court [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157.
[338]Extradition Act 1999, s 24(4).
[339]Bujak, above n 36, at [30]–[33].
[340]At [27]; quoting the High Court decision in the same case Bujak v Republic of Poland [2007] NZAR 513 (HC) at [44].
[341]Wilson, above n 330, at [92(e)] and similarly at [60].
[342]At [78]–[80].
[343]Wilson, above n 330, at [92(e)].
[344]See Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745.
[345]See Dotcom v Attorney-General [2017] NZHC 1621 at [1] and [2]; and Dotcom v Attorney‑General [2018] NZCA 220 at [10].
[346]Dotcom v Crown Law Office [2018] NZHRRT 7.
[347]At [204].
[348]See above at [3]; and see HC judgment, above n 2, at [6]–[7].
[349]HC judgment, above n 2, at [8].
[350]At [554]–[584]; applying the test in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
[351]At [8]; referring to Ortmann v United States of America [2016] NZHC 522.
[352]At [23].
[353]Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [56]–[61].
[354]United States of America v Dotcom DC North Shore CRI-2012-092-1647, 21 July 2015.
[355]Ortmann v United States of America HC Auckland CIV-2015-404-1733, 6 August 2015; and Dotcom v United States of America HC Auckland CIV-2015-404-1770, 13 August 2015.
[356]Ortmann v District Court at North Shore [2015] NZCA 443 at [15], [21] and [23].
[357]See HC judgment, above n 2, at [451]. Judge Dawson released a results decision in United States of America v Dotcom DC North Shore CRI-2012-092-1647, 29 October 2015; with reasons in DC judgment, above n 1, at [437]–[571].
[358]HC judgment, above n 2, at [567].
[359]HC judgment, above n 2, at [537] and [543].
[360]Judge Dawson gave his reasons by inserting the grounds of the application into the judgment and responding point by point: DC judgment, above n 1, at [578]. See similarly Crinion v IG Markets Ltd [2013] EWCA Civ 587 at [16]–[18] where the Court held a similar practice, though not laudable, did not found judicial review.
[361]We express no view about other proceedings brought by the appellants against those involved in the alleged misconduct.
[362]See above at [188].
[363]Extradition Act 1999, s 72(1).
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