McKELVY v UNITED STATES OF AMERICA [2023] NZHC 3698

McKELVY v UNITED STATES OF AMERICA [2023] NZHC 3698 [15 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000295[2023] NZHC 3698UNDER the Extradition Act 1999, Part 8IN THE MATTER of an appeal against the District CourtJudge's decision to grant the Respondent'srequest for surrenderBETWEEN MILES JOHN McKELVYAppellantAND UNITED STATES OF AMERICARespondentCIV-2023-404-001530/contHearing: 1 December 2023Appearances: R Mansfield KC and H Stuart for the Appellant/PlaintiffB Thompson for the Respondent/First DefendantNo appearance for the Second DefendantJudgment: 15 December 2023JUDGMENT OF GORDON JThis judgment was delivered by me on 15 December 2023 at 10 am,Registrar/Deputy RegistrarDate:Solicitors/Counsel: Crown Law, WellingtonR Mansfield KC, AucklandB Gloyn, AucklandH Stuart, AucklandUNDER the Judicature Amendment Act 1971, Part30 of the High Court Rules and s 27(2) ofthe New Zealand Bill of Rights Act 1990BETWEEN MILES JOHN McKELVYPlaintiffAND UNITED STATES OF AMERICAFirst DefendantDISTRICT COURT AT AUCKLANDSecond Defendant[1] This is an appeal on questions of law1 by Miles McKelvy against a decision ofJudge P Winter finding Mr McKelvy eligible for surrender to the United States ofAmerica under s 24 of the Extradition Act 1999 (the Act).2 Mr McKelvy also seeksjudicial review of Judge Winter's decision. The appeal and application for judicialreview were heard together.[2] Mr McKelvy was indicted in the United States together with four co-defendants on a charge of conspiracy to import and export cocaine, and to manufactureand distribute cocaine, intending, knowing, and with reason to believe that the cocainewould be unlawfully imported into the United States.3[3] Mr McKelvy was then arrested in New Zealand under a provisional warrant,4following which the United States requested his surrender under the Treaty onExtradition between New Zealand and the United States5 (Treaty) and the Act.[4] In brief, it is alleged that the conspiracy involved buying 400 kilograms (kg)of cocaine from Peru. It is further alleged that the shipment would travel from Peruto the United States and then be exported from there to the ultimate destinations:Romania and then New Zealand. It is alleged that Mr McKelvy played a central rolein the conspiracy.[5] There are a number of grounds in the notice of appeal but they can be distilledinto three grounds as follows:6(a) The Judge erred in his assessment of the double criminality requirementby holding that New Zealand law does not require New ZealandCustoms Service (Customs) to be cleared for there to be an importationunder the Misuse of Drugs Act 1975. In other words, the Judge erredin finding there is an importation if the drugs are present in1 Extradition Act 1999, s 68.2 The United States of America v McKelvy [2023] NZDC 10632.3 In violation of 21 USC § 963 and 960(b)(1)(B).4 Issued under the Extradition Act, s 20.5 Treaty on Extradition between New Zealand and the United States of America [1970] NZTS 7(signed 12 January 1970, entered into force 8 December 1970) (Treaty). The text of the Treaty isreproduced in sch 1 to the Extradition (United States of America) Order 1970.6 The notice of appeal contains nine grounds; two (grounds 7 and 8) were not pursued.New Zealand in transit to another country. As a consequence of thatalleged error, the Judge erred in holding that the alleged offence is an"extradition offence".7(b) The Judge erred by considering the contents of the United Statesindictment which refers to discussions in a meeting betweenMr McKelvy's alleged co-conspirators (at which he was not present)where they discussed matters relating to the arrival of the cocaine intothe United States and its export from there.(c) The Judge erred in two respects when he analysed the Record of Case(ROC),8 finding a prima facie case because:(i) there is no evidence of a plan to import cocaine onto UnitedStates soil; and(ii) there is no evidence that Mr McKelvy knew of a plan for thecocaine to transit through the United States, let alone for it toenter onto United States soil.[6] Although expressed as an error of law in the notice of appeal and in the writtensubmissions, the position for Mr McKelvy in oral submissions was that the thirdground of appeal does not involve a question of law. Accordingly, it was submittedthat ground falls to be considered under the first cause of action in the judicial reviewapplication.[7] The statement of claim in the judicial review has three causes of action. Thefirst cause of action is: "the District Court erred". It repeats eight of the nine groundsof appeal from the notice of appeal.97 Extradition Act, s 4.8 Section 25 permits an "exempted country", such as the United States (see Extradition (ExemptedCountry: United States of America) Order 1999) to submit a Record of Case (ROC) whichprovides a summary of the evidence relied on to support the request for surrender. Individualwitness statements are not required when a ROC is utilised.9 Grounds 1 to 7 and 9 of the notice of appeal.[8] The second and third causes of action were abandoned at the hearing.10[9] In the District Court Mr McKelvy did not raise any issues regarding thestatutory regime for a United States request for extradition and the formal processesrequired.11 Nor did he argue that the processes were not followed in this case.Mr McKelvy further did not argue that any of the mandatory or discretionaryrestrictions on surrender applied.12 Accordingly, none of these issues form part of theappeal or judicial review.[10] The United States opposes the appeal. It says the Judge did not err as alleged.The United States further says the first cause of action in the judicial reviewproceeding is entirely duplicative of Mr McKelvy's grounds of appeal. Therefore, theapplication for review should be dismissed.[11] The second defendant in the judicial review proceeding, the District Court atAuckland, abides the decision of the Court.BackgroundAlleged offending[12] The alleged offending is referred to in the first superseding indictment13(Indictment) and the ROC, both of which are annexed as exhibits to the affidavit ofAssistant United States Attorney Brittian A Featherston sworn 10 December 2020, insupport of the request for the extradition of Mr McKelvy. The following summary isdrawn exclusively from the ROC.[13] On 31 May 2020 an undercover special agent (undercover agent) of the UnitedStates Drug Enforcement Administration (DEA), acting in his undercover capacity10 The second cause of action was: "Procedural unfairness/breach of natural justice". This cause ofaction related to the Judge's decision during the hearing to allow the United States to file aSupplemental Record of Case (SROC). The third cause of action was: "Apparent bias". Thiscause of action related to the Judge's decision to adjourn the extradition hearing part-heard toallow the United States to file the SROC.11 Now well-settled since Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355.12 Extradition Act, s 24(3) and (4), s 7 and s 8.13 Dated 4 November 2020.posing as a large-scale drug trafficker, received a message through Wickr14 from aperson with the username "dmted", later identified as co-defendant Wen Hui Cui.Mr Cui said he was interested in purchasing a large quantity of cocaine for shipmentto New Zealand.[14] Mr Cui explained that his partner, nicknamed "Angel" or "Angelo", wouldcontact the undercover agent and was available to meet him in person to arrange thecocaine deal. On that same day the undercover agent received a Wickr message froma person with the username "angelo3333", who identified himself as the partner of"dmted" and who was later identified as the co-defendant Murray Matthews.Mr Matthews confirmed he was authorised to negotiate on behalf of Mr Cui and hewas available for "whatever and whenever" he might be needed.[15] On 6 July 2020, after further discussions on Wickr between the undercoveragent, Mr Cui and Mr Matthews, a member of the scheme caused NZD $50,000 to bewired to a United States bank account. In their communications with the undercoveragent, Mr Cui and Mr Matthews had said that the NZD $50,000 was partial paymentfor the cocaine they wished to purchase. Unbeknownst to Mr Cui and Mr Matthews,the bank account was controlled by the DEA and the funds were seized by the UnitedStates Government.[16] During further discussions with Mr Cui and Mr Matthews, the undercoveragent requested Mr Matthews to travel to Romania to meet in person before theycompleted the deal. He invited Mr Matthews to bring a companion if he wished andMr Matthews agreed.[17] In late July 2020 the undercover agent, in co-ordination with Romanian lawenforcement officials, travelled to Bucharest, Romania, to meet with Mr Matthews.On 21 July 2020 the undercover agent met Mr Matthews and another man, lateridentified as co-defendant Marc Patrick Johnson (also known as "Rush"), whomMr Matthews described as his partner and the financier of the planned drugtransaction. Over the course of the meeting Mr Matthews and Mr Johnson discussed14 Wickr is an application that can be installed on smart phones and used to send and receive instantcommunications, including text messages, multimedia files, and real-time audio calls.the pending cocaine delivery, including the fact that the cocaine would be shippedfrom Peru to Beaumont, Texas in the United States, and from there to Romania andfinally New Zealand. Mr Matthews and Mr Johnson both agreed to this plan andfurther agreed that the quantity of cocaine would be increased to 400 kg.[18] While in Romania the undercover agent was also contacted by co-defendantMarius Lazar, an associate of Mr Matthews living in Romania. Mr Lazar requestedan additional delivery of cocaine for himself and also requested that the undercoveragent arrange the murder of one or more rival gang members and drug traffickers.[19] Following the meeting in Romania, negotiations continued regarding thespecifics of the 400 kg cocaine shipment. On 24 August 2020, members of the schememade three additional transfers of money totalling approximately USD $629,182 intothe bank account in the United States controlled by the DEA.[20] On 16 September 2020 Mr Matthews contacted the undercover agent andstated that he had "details" to provide about the "freight forwarder" whose role itwould be to accept the load of cocaine once it arrived in New Zealand on a containership. In a subsequent conversation, Mr Matthews informed the undercover agent thatthe person who would be accepting the cocaine was named Miles John McKelvy, withthe alias "Doc".[21] On 21 September 2020 the undercover agent contacted Mr Matthews andprovided him with a password "kiwi [date redacted]" to pass on to Mr McKelvy forthe purpose of initiating communication between the undercover agent andMr McKelvy. The password (which contained Mr McKelvy's birthdate) was so thatMr McKelvy would be able to verify his identity when communicating with theundercover agent via Wickr.[22] On the following day, 22 September 2020, Mr Matthews provided the Wickrusername "docnz1" for the purposes of the undercover agent contacting Mr McKelvyvia Wickr. The undercover agent did so and when prompted, Mr McKelvy providedthe undercover agent with the correct password "kiwi [date redacted]" and confirmedthat the date in the password was his birthdate.[23] In the course of that communication, when asked what he understood about theenterprise in which he was involved, Mr McKelvy stated: "there is a container comingand I'm to arrange a freight forwarder to receive it and a[n] A[d]dress for it to bedropped to Then once it passes clearance I arrange with marc [Johnson] and Angelo[Matthews] to pickup. And when finished I get paid".[24] The undercover agent asked Mr McKelvy if he was aware that the shipment hewas receiving consisted of 400 kg of cocaine. Mr McKelvy replied: "Yes I'm veryclear but this will work if we get the paperwork bang on".[25] The two then went on to discuss the purity of the cocaine, its origin andproduction in Peru, and its sales potential in New Zealand, with Mr McKelvy stating:"I have been told by Marc [Johnson] it's the best That's what everyone wants herescreaming for it" and "I have been told this your product can go threw [sic] a scan andpass I have been told the dog can't smell it". The two also discussed prices ofmethamphetamine for a possible future transaction.[26] Emphasising the importance of getting the "paperwork" done correctly,Mr McKelvy requested certain information from the undercover agent, including thecontact information for the freight forwarder who was to facilitate the shipment.During the conversation, the undercover agent addressed Mr McKelvy by the name"McKelvy" multiple times and was never corrected. When asked what he preferredto be called, Mr McKelvy provided his first name "Miles".[27] On 23 September 2020, the undercover agent contacted Mr McKelvy via Wickrand asked whether this was Mr McKelvy's "first time doing this", explaining that itwas important for him to be confident his "investment was in good hands".Mr McKelvy then responded with his experience including that he had "brought inlots from China for many years". Mr McKelvy explained this includedmethamphetamine and certain precursor chemicals which he said were used to "makecrystal".[28] On 26 September 2020, Mr Matthews sent the undercover agent a photographof Mr McKelvy's driver licence bearing a photograph, date of birth and otheridentifying details. A copy of the driver licence is exhibited to Mr Featherston'saffidavit.[29] On 7 October 2020, the undercover agent communicated with Messrs Cui,Matthews, Johnson and Lazar, saying there was a need for another in-person meetingin Romania because (on the narrative created by the undercover agent) the UnitedStates bank had frozen the funds from the 24 August 2020 transfer.[30] On 21 October 2020 the undercover agent requested Mr McKelvy to providehis phone number so that the two could hold a virtual "face-to-face" meeting via videochat. Mr McKelvy provided a New Zealand telephone number in response. Using thetelephone number Mr McKelvy had provided, the undercover agent contacted him thenext day. The undercover agent says that the person he spoke to was the same personpictured in the driver licence he had been sent by Mr Matthews. The two of themdiscussed the fact that there was to be a meeting between the undercover agent and thefour co-defendants as referred to above. Mr McKelvy expressed his regret that he wasunable to attend saying he would not be able to travel out of New Zealand until Junethe following year.[31] On 17 November 2020, the undercover agent met with Mr Matthews andMr Johnson in Bucharest, Romania as planned. They still owed money to theundercover agent for the planned cocaine purchase. Mr Matthews and Mr Johnsonhad been unable to collect sufficient cash to cover the price, and they requested insteadto pay using Bitcoin digital currency. The undercover agent agreed and provided theBitcoin "wallet" information they should use to make the transfer. Mr Johnsonexplained that "Doc" (Mr McKelvy) was on "standby" preparing to facilitate theBitcoin transfer.[32] On 18 November 2020 the undercover agent met again with Mr Matthews andMr Johnson. After a brief discussion of the progress of the criminal scheme, officersof the Romanian National Police entered the location and arrested Mr Matthews andMr Johnson pursuant to a provisional arrest request from the United States.[33] Following the arrests, the undercover agent communicated with Mr Ciu abouttheir sudden disappearance (which from Mr Ciu's perspective, was unexplained). Theundercover agent expressed concern that he was still owed money for the cocaine. Inresponse, Mr Ciu said that "Doc" (Mr McKelvy) would work on getting the moneyand that "Doc" was in contact with their money laundering intermediary based in HongKong. Mr Ciu expressed reluctance to approach anyone else for the money, explaining"our circle is small. Other than me, rush [Johnson], angel [Matthews and,] doc[McKelvy]. No other people knows about what we doing".Arrest of Mr McKelvy and request for surrender[34] On 17 November 2020, the United States applied for a provisional warrant forMr McKelvy's arrest.15 The warrant was issued by a District Court Judge andMr McKelvy was arrested by New Zealand Police on 19 November 2020.[35] On 18 December 2020, the New Zealand Ministry of Foreign Affairs (MFAT)and the Ministry of Justice received a formal request from the United States forMr McKelvy's surrender.Evidence for eligibility hearing[36] The United States filed the following affidavit evidence in advance of thehearing in the District Court:(a) Affidavit of Christopher Hurd, a senior solicitor at the Ministry ofJustice, giving evidence of steps taken in the extradition process. Theaffidavit formally exhibited the request for surrender documents fromthe United States.(b) Affidavit of Samuel Taylor, a legal adviser at MFAT, giving evidenceof the formal transmission of the United States' request for surrenderthrough the diplomatic channel.15 Extradition Act, s 20.(c) Affidavit of Assistant United States Attorney Brittian Featherston,which was included in the request for surrender materials.Mr Featherston's affidavit annexes the following:(i) Exhibit 1: the Indictment, together with a corresponding noticeof penalty.(ii) Exhibit 2: arrest warrant dated 4 November 2020 issued in theUnited States.(iii) Exhibit 3: relevant provisions of United States law.(iv) Exhibit 4: the Statement of Conduct constituting the offence.16(v) Exhibit 5: the ROC certified by Mr Featherston and dated10 December 2020.[37] The ROC contains a summary of the evidence on which the United States reliesto demonstrate a prima facie case as required under s 24(2)(d)(i) of the Act (discussedfurther below). There was no issue in the District Court as to the admissibility of theROC under s 25 of the Act.17Hearing and Supplemental ROC[38] The hearing commenced in the District Court on 22 August 2022 before JudgeWinter. One of the issues raised on behalf of Mr McKelvy was that the ROC did notstate whether the undercover agent was located in the United States at the times hewas communicating with Mr McKelvy and the other alleged co-conspirators.Accordingly, it was submitted on behalf of Mr McKelvy that it could not be shownthere was any conspiracy formed in the United States. It was further submitted thatsuch an extraterritorial conspiracy would not constitute an offence in New Zealandsuch that the double criminality requirement in the Act18 could not be satisfied.16 A requirement of art X of the Treaty.17 See fn 8 above.18 Sections 24(2)(c) and 4(1)(a) and (2).[39] Judge Winter adjourned the hearing part-heard and granted leave to the UnitedStates to "amend the ROC to confirm that the [undercover agent] was present in theUS during the material term of the conspiracy". A Supplemental ROC (SROC) wasduly filed on 13 January 2023. The SROC was contained within an affidavit from anAssistant United States Attorney and it was appropriately certified. The SROCcontained the following paragraph:Location of the Undercover AgentThe Undercover Special Agent of the U.S. Drug Enforcement Administrationreferred to in the Record of the Case, who speaks with a clear Americanaccent, is expected to testify that he was located in Texas, United States ofAmerica, at all relevant times, other than when he travelled to Romania, as setout in the Record of the Case.[40] The hearing resumed in the District Court before Judge Winter on 21 February2023. Judge Winter issued his decision finding Mr McKelvy eligible for surrender on31 May 2023.Determination of eligibility for surrender: statutory provisions[41] Before setting out the relevant parts of the decision under appeal, I first set outs 24 of the Act and an explanation of the four-step process that an extradition courtmust follow under that section, in order to provide context for the Judge's decision.[42] Section 24 provides (in relevant part):24 Determination of eligibility for surrender(1) Subject to section 23(4),19 if a person is brought before a court underthis Part, the court must determine whether the person is eligible forsurrender in relation to the offence or offences for which surrender issought.(2) Subject to subsections (3) and (4),[20] the person is eligible forsurrender in relation to an extradition offence for which surrender issought if—19 Section 23(4) sets out the procedure that must be followed before a hearing may proceed if theperson whose surrender is sought was arrested on a provisional warrant. There was no issueregarding the procedure in this case.20 Subsections (3) and (4) relate to the mandatory and discretionary restrictions on surrender unders 7 and s 8 of the Act respectively. They are not in issue in this appeal and judicial review.(a) the supporting documents (as described in section 18(4)) inrelation to the offence have been produced to the court; and(b) if—(i) this Act applies in relation to the extradition countrysubject to any limitations, conditions, exceptions, orqualifications that require the production to the courtof any other documents; or(ii) the terms of an extradition treaty in force betweenNew Zealand and the extradition country require theproduction to the court of any other documents—those documents have been produced to the court; and(c) the court is satisfied that the offence is an extradition offencein relation to the extradition country; and(d) the court is satisfied that the evidence produced or given atthe hearing would, according to the law of New Zealand, butsubject to this Act,—(i) in the case of a person accused of an extraditionoffence, justify the person's trial if the conductconstituting the offence had occurred within thejurisdiction of New Zealand; or(ii) ...[43] To determine eligibility for surrender under s 24 the Court undertakes a four-step process:21(a) Step 1: the supporting documents submitted with the diplomatic requestfor extradition must be produced to the extradition court,22 as well asany documents required under a relevant treaty.23(b) Step 2: the court must decide that the offence is an extradition offenceas defined in s 4 of the Act.24 This is what is referred to as the doublecriminality requirement. The conduct must constitute an offence in thecountry requesting extradition, punishable by at least 12 months'21 Ortmann v United States of America [2018] NZCA 233, [2018] 3 NZLR 475 at [42] [Ortmann(CA)].22 Extradition Act, s 24(2)(a).23 Section 24(2)(b).24 Section 24(2)(c).imprisonment, and under New Zealand law, had the conduct occurredhere, punishable by at least 12 months' imprisonment.(c) Step 3: the court must be satisfied that the evidence produced or givenat the hearing would (in the case of a person accused of an extraditionoffence) justify the person's trial if the conduct constituting the offencehad occurred within the jurisdiction of New Zealand.25 The ROC andSROC form the basis of the step 3 inquiry in this case.(d) Step 4: the court determines whether any mandatory or discretionaryrestrictions on surrender apply.26[44] Steps 1 and 4 were not in issue in the District Court and accordingly are not inissue in the appeal or in the application for judicial review.Decision of District Court Judge[45] After a brief introduction Judge Winter summarised the conspiracy thatMr McKelvy was alleged to have been involved in and then referred to the relevantcharge in the Indictment:27 Mr McKelvy is not charged with the other counts in the indictment relatingto money laundering, smuggling and unlawful violence including murder.Mr McKelvy is however alleged under that indictment, to have been a memberof a small group of persons that have conspired between May 2020 toNovember 2020, to manufacture and then ship 400 kilograms of cocaine fromPeru to the United States, then to Romania, and finally from there to NewZealand.[4] Count 2 of that indictment relates to charges of conspiracy to import andexport cocaine, and to manufacture and distribute cocaine intending, knowing,and with reason to believe that the cocaine will be unlawfully imported intothe United States during the course of that criminal conspiracy.[46] The Judge next reviewed and summarised the evidence in the ROC and thenreferred to and followed the four-step process for determining eligibility for surrender(as set out in [43] above of this judgment).25 Section 24(2)(d)(i).26 Section 24(3) and (4).27 The United States of America v McKelvy, above n 2, from [3].[47] As already noted, there was no challenge in the District Court to step 1 (thatcertain documents must be produced to the extradition court).[48] In considering step 2, namely whether the offence was an extradition offenceunder s 24(2)(c), the Judge referred to Ortmann v United States of America and set outthe three requirements for an "extradition offence":28(a) that the conduct relied upon is an offence contained in the extraditiontreaty (if there is one);(b) that the conduct would constitute an offence in the requesting countrypunishable with a maximum penalty of not less than 12 months'imprisonment (which we refer to as the requisite penalty); and(c) that the conduct alleged to constitute the offence, had it occurred inNew Zealand, would constitute an offence under New Zealand law,again punishable with a maximum penalty of not less than 12 months'imprisonment (which we also refer to as the requisite penalty).[49] The Judge was satisfied that the conduct alleged was an extradition offencecontained in the Treaty. For completeness, he considered and held that the offencecould also be a deemed offence under the United Nations Convention againstTransnational Organised Crime 2003 (TOC Convention) by virtue of s 101B(1)(c)(i)of the Act.[50] Mr McKelvy does not take issue with these two aspects of the Judge's decision,namely that the offence with which Mr McKelvy is charged is a Treaty offence and adeemed offence under the TOC Convention.[51] The Judge then went on to consider whether the offence was an offence underUnited States law punishable by at least 12 months' imprisonment. The Judge statedthat it is not the extradition court's role to interpret the offence under the United Stateslaw. He noted the court's limited role as set out by the Supreme Court in Ortmann:29[155] As s 24(2)(c) of the Extradition Act makes clear, it is the task of theNew Zealand court to satisfy itself that the alleged offence is punishable underthe law of the requesting country with the level of penalty stipulated ins 4(1). The task imposed upon the court in this regard is, however, limited. Itis not necessary for the requesting country to prove foreign law to satisfy the28 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [151] [Ortmann(SC)].29 Ortmann (SC), above n 28, (footnotes omitted).requirement that the conduct constituting an offence under its law attracts therequisite penalty. It is sufficient if there is a statement from a law officer ofthe requesting country covering this aspect of the definition of extraditionoffence.[52] The Judge referred to Mr Featherston's affidavit in which it is stated thatMr McKelvy is charged with violating 21 USC § 963 by conspiring to commitspecified drug trafficking offences (involving five kg or more of cocaine) which carrya penalty of not less than 10 years' imprisonment and up to life imprisonment. TheJudge's decision records that Mr Featherston describes in detail the conspiracy offenceas an independent offence under United States law. The Judge noted thatMr Featherston also sets out the offence elements the United States must establishbeyond reasonable doubt for a finding of guilt.[53] The Judge was satisfied that Mr Featherston's evidence was sufficient toestablish that the offence in the extradition country is an offence which is punishableby a maximum penalty of no less than 12 months' imprisonment. Again, there is noissue taken by Mr McKelvy regarding this aspect of the Judge's decision regarding an"extradition offence".[54] The Judge then moved to the third requirement that needs to be satisfied toestablish that the offence is an extradition offence: that the conduct alleged toconstitute the offence, had it occurred in New Zealand, would constitute an offenceunder New Zealand law punishable with a maximum penalty of not less than12 months' imprisonment. It is the Judge's decision on this third requirement thatMr McKelvy takes issue with in the first ground of appeal.[55] The Judge discussed in detail the submissions for both parties, including, asrelevant to this appeal and application for review, what is required to constitute animportation under New Zealand law. The Judge rejected the submission made onbehalf of Mr McKelvy finding that New Zealand law does not require Customs to becleared for there to be a drug importation. The Judge said:[52] In my judgement the position under New Zealand law does not requireCustoms to be cleared for there to be a drug importation. It is sufficient thatthe drugs may only be present in transit to another country when they arrivewithin the New Zealand territorial jurisdiction. [57] I do not accept the argument that the cocaine was in transit and thereforethe respondent cannot be said to have been "importing" the cocaine into thecountry. [58] The authorities support the proposition that goods in transit may beviewed as being imported into the country in the present case. That is sonotwithstanding the Respondent's contention that there was no evidence in theROC as to whether the container holding the cocaine was to be stripped or not.[56] The Judge considered that the domestic limb of the double criminality test wassatisfied and accordingly held the offence was an "extradition offence".[57] The Judge then went on to consider the requirement in s 24(2)(d)(i), namelywhether the evidence summarised in the ROC (and SROC) was sufficient to establisha prima facie case had the offence occurred within the jurisdiction of New Zealand.[58] Relying on the Supreme Court decision in Ortmann, Judge Winter said that aprima facie case can be established by direct assertion or by inference from otherevidence.30 The Judge again referred to Ortmann in relation to the Court's task in theweighing of evidence, where the Supreme Court said:31 The Judge is not required to assess the evidence to determine whichinference is more plausible. The assessment is limited to whether theinference the requesting country seeks to draw is reasonably available. [59] The Judge referred to some of the evidence in the ROC relied on by the UnitedStates in support of its submission as to the existence of the alleged conspiracy andMr McKelvy's membership of it. The Judge then found as follows:[68] I assess the ROC evidence as being highly compelling and incriminatingof Mr McKelvy's involvement in the conspiracy to import cocaine. Theevidence provides a strong inference from Mr McKelvy's conduct, that he wasa member of an alleged transnational conspiracy to purchase and importcocaine into New Zealand via Romania and the United States. The directevidence and the inferential evidence clearly link Mr McKelvy to thatconspiracy. I am therefore reasonably satisfied that the United States hasestablished a prima facie case against Mr McKelvy to the extent that the ROC30 The United States of America v McKelvy, above n 2, at [64] citing Ortmann (SC), above n 28, at[424].31 At [65] citing Ortmann (SC), above n 28, at [521] (footnote omitted).would justify Mr McKelvy's trial under the Misuse of Drugs Act, if theconduct constituting the offence had occurred in New Zealand. As I havepreviously stated, the elements of the "extradition offence" have beenestablished in this proceeding.[60] The Judge concluded that in his view, the evidence produced at the extraditionhearing by the admission of the ROC was sufficient to justify Mr McKelvy's trial ifthe conduct constituting the offence had occurred in New Zealand.[61] Finally, the Judge recorded that he was not aware of any applicable mandatoryor discretionary restrictions preventing the surrender of Mr McKelvy to the UnitedStates. Accordingly, the Judge determined that Mr McKelvy was eligible for surrenderto the United States in relation to the offence for which surrender was sought.First ground of appeal[62] Mr McKelvy says the Judge erred in his consideration of the domestic limb ofthe double criminality requirement in s 24(2)(c) and s 4 of the Act when the Judgefound that goods in transit may be viewed as being "imported" into New Zealandunder the Misuse of Drugs Act without having cleared Customs in New Zealand andaccordingly, without becoming available to individuals in New Zealand.[63] Ms Stuart, junior counsel for Mr McKelvy, submits that of the cases referredto in the parties' submissions, only two were referred to by the Judge in any detail:R v Barreiro-Teixeira and R v Smith (Donald).32 Both Ms Stuart and Mr MansfieldKC, senior counsel for Mr McKelvy who addressed the Court in reply submissions,say that significantly, the Judge did not analyse the key Court of Appeal authoritiesrelied on by Mr McKelvy as to the nature and meaning of "importation" in the Misuseof Drugs Act: R v Hancox and R v Atias (No 2).3332 R v Barreiro-Teixeira HC Auckland CRI-2005-092-4272, 11 May 2006 (Reasons for decision ofVenning J); and R v Smith (Donald) [1973] QB 924.33 R v Hancox [1989] 3 NZLR 60 (CA); and R v Atias (No 2) HC Auckland T025837, 26 September2003.[64] Under s 24(2)(c) the Court must be satisfied that the offence is an extraditionoffence in relation to the extradition country. "Extradition offence" is defined in s 4which provides in relevant part:4 Meaning of extradition offence(1) In this Act, extradition offence means, subject to an extraditiontreaty,—(a) in relation to an extradition country, an offence punishableunder the law of the extradition country for which themaximum penalty is imprisonment for not less than12 months or any more severe penalty, and which satisfies thecondition in subsection (2):(b) ...(2) The condition referred to in subsection (1)(a) is that if the conduct ofthe person constituting the offence in relation to the extraditioncountry, or equivalent conduct, had occurred within the jurisdiction ofNew Zealand at the relevant time it would, if proved, have constitutedan offence punishable under the law of New Zealand for which themaximum penalty is imprisonment for not less than 12 months or anymore severe penalty.(3) For the purposes of determining whether the condition in subsection(2) is satisfied in relation to a particular application for surrender of aperson, the relevant time referred to in subsection (2) is the time atwhich the conduct is alleged to have occurred.(4) ...[65] I repeat for ease of reference, in summary form, the paragraph from Ortmann(referred to in [48] above) in which the Supreme Court determined that s 24(2)(c)requires the extradition court to be satisfied that the conduct relied upon:(a) is an offence in the treaty;(b) would constitute an offence in the requesting country punishable by amaximum penalty of not less than 12 months' imprisonment; and(c) would constitute an offence under New Zealand law punishable by amaximum penalty of not less than 12 months' imprisonment had theoffence occurred within the jurisdiction of New Zealand.[66] Accordingly, a combination of s 24(2)(c) and the definition of "extraditionoffence" in s 4 require what is referred to as double criminality. In other words, thealleged conduct must not only constitute an offence in the country making the requestfor surrender, but also under New Zealand law if the alleged conduct had occurred inthe jurisdiction of New Zealand (the domestic limb).[67] It is not in dispute that there does not need to be an exact match between theoffence in the requesting country and the New Zealand offence. What the Courtconsiders is the overall criminality of the alleged conduct. This is apparent from s 5of the Act which provides:5 Interpretation provisions relating to offences(1) A reference in this Act to conduct constituting an offence is areference to the acts or omissions, or both, by virtue of which theoffence has, or is alleged to have, been committed.(2) In making a determination for the purposes of section 4(2), the totalityof the acts or omissions alleged to have been committed by the personmust be taken into account and it does not matter whether under thelaw 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.[68] It is important to be clear that when the Court is considering whether thedomestic limb of the double criminality requirement has been satisfied, the Courtconsiders what is alleged against the person whose surrender is sought. This step(step 2 in the inquiry regarding eligibility for surrender) is concerned with the conductthat is alleged. The Court is not concerned with the sufficiency of evidence, which isstep 3 under s 24(2)(d)(i) of the Act. That distinction is clear from Ortmann where theSupreme Court, when referring to s 24(2)(c) (step 2 in the inquiry), said:34[160] This step is concerned with identifying a New Zealand offence whichmatches the alleged conduct. It is the necessary precondition to thes 24(2)(d)(i) task of assessing the prima facie case but, as we come to, is notto be confused with it.34 Ortmann (SC), above n 28, (footnote omitted).[69] The Court continued:[161] The task for the court under s 24(2)(d)(i) is to assess whether therequesting country has made out a prima facie case that the conduct of theperson accused of an extradition offence would justify the person's trial if ithad occurred within New Zealand.[70] And on the same topic in another part of the judgment the Court said:35 Section 24(2)(d) performs a different function [from the double criminalitypart of the definition of "extradition offence" in s 4] – it imposes on the courta requirement that it be satisfied there is sufficient evidence of theNew Zealand side of the double criminality requirement. ...[71] In his written submissions Mr Mansfield conflated the two steps: the domesticlimb of the double criminality requirement for an "extradition offence" (s 24(2)(c) ands 4) and the requirement for a prima facie case (s 24(2)(d)(i)). In doing so,Mr Mansfield submitted the Court may only have regard to the ROC (the evidence)and cannot consider other materials before the Court when assessing the domestic limbof the double criminality requirement. Again, in the written submissions,Mr Mansfield submitted that the ROC does not expressly state whether it was intendedthat the cocaine would: be removed from the ship when it entered the United States;clear Customs; and be made available to anyone in the United States.[72] However, in oral submissions Ms Stuart said she was prepared to accept thatthe Court may consider other materials beyond the ROC that form part of the UnitedStates' formal request, including the United States Indictment, when the Court makesits assessment regarding the domestic limb of the s 24(2)(c) inquiry. This concessionaccords with the position of the United States in this hearing.[73] I consider that is a proper acknowledgement on the part of Ms Stuart, and isconsistent with the decision of the House of Lords in Norris v Government of theUnited States of America.36 In Norris, the House of Lords was considering, whenassessing double criminality, whether the extradition court should adopt what it calledthe "offence test" or the "conduct test". The judgment also addresses the issue of what35 At [118].36 Norris v Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920.materials the Court may consider in deciding if there is an extradition offence. Itstates:[65] Before turning, as will be necessary, to a brief history of Englishextradition law prior to the Extradition Act 2003, particularly with regard tothe so-called double criminality rule, it is useful to stand back from the detailand recognise the essential choice that the legislature makes in deciding justwhat the double criminality principle requires. It is possible to define thecrimes for which extradition is to be sought and ordered (extradition crimes)in terms either of conduct or of the elements of the foreign offence. That is thefundamental choice. The court can be required to make the comparison and tolook for the necessary correspondence either between the offence abroad (forwhich the accused's extradition is sought) and an offence here, or between theconduct alleged against the accused abroad and an offence here. Forconvenience these may be called respectively the offence test and the conducttest. It need hardly be pointed out that if the offence test is adopted therequested state will invariably have to examine the legal ingredients of theforeign offence to ensure that there is no mismatch between it and thesupposedly corresponding domestic offence. If, however, the conduct test isadopted, it will be necessary to decide, as a subsidiary question, where, withinthe documents emanating from the requesting state, the description of therelevant conduct is to be found.[74] The House of Lords settled on the "conduct test" (which is the test in theNew Zealand Act) and went on to comment on the "subsidiary question" referred to atthe end of the paragraph quoted above, namely, where within the documentsemanating from the requesting state, the description of the relevant conduct is to befound. The judgment says:37[91] The committee has reached the conclusion that the wider constructionshould prevail. In short, the conduct test should be applied consistentlythroughout the 2003 Act, the conduct relevant under Part 2 of the Act beingthat described in the documents constituting the request (the equivalent of thearrest warrant under Part 1), ignoring in both cases mere narrative backgroundbut taking account of such allegations as are relevant to the description of thecorresponding United Kingdom offence. Had Mr Norris's appeal failed on thefirst issue the extradition order on count 1 would have stood.[75] Mr Thompson, counsel for the United States, submits that when that approachis followed, the alleged conduct translates into a qualifying offence under NewZealand law: conspiring to import or export cocaine pursuant to s 6(2A)(a) of theMisuse of Drugs Act.37 Emphasis added.[76] Section 6(2A)(a) provides that it is an offence to conspire with any other personto commit an offence against s 6(1) of the Misuse of Drugs Act. Section 6(1) includes:(a) importing into or exporting from New Zealand any controlled drug;38(b) producing or manufacturing any controlled drug;39 and(c) supplying any Class A or Class B controlled drug to any other personor otherwise dealing in any such controlled drug.40[77] Cocaine is a Class A controlled drug.41 The maximum penalty for a conspiracyunder s 6(2A)(a) to commit any of the above offences is 14 years' imprisonment.[78] In order to assess the domestic limb of the s 24(2)(c) inquiry, I start with theIndictment. Count Two (the only charge Mr McKelvy faces) is expressed as follows:42That from sometime in or about May 2020, and continuing through the dateof this First Superseding Indictment, in Peru, Romania, New Zealand, China,and the Eastern District of Texas and elsewhere,Murray Michael Matthews, a/k/a "Angelo," a/k/a "Marz,"Wen Hui Cui, a/k/a "Chuy," a/k/a "DD,"Marius Lazar, a/k/a "Mario,"Marc Patrick Johnson, a/k/a "Rush," andMiles John McKelvy,defendants, did knowingly and intentionally combine, conspire, and agreewith each other and other persons known and unknown to the United StatesGrand Jury, to commit the following offenses against the United States: (1) toknowingly and intentionally import at least five kilograms of a mixture orsubstance containing a detectable amount of cocaine, a Schedule II controlledsubstance, into the United States from Peru in violation of 21 USC §§ 952and 960; (2) to knowingly and intentionally export at least five kilogramsof mixture or substance containing a detectable amount of cocaine, a ScheduleII controlled substance, from the United States to Romania andNew Zealand, in violation of 21 USC §§ 953 and 960; and (3) to knowinglyand intentionally manufacture and distribute at least five kilograms of amixture and substance containing a detectable amount of cocaine, a ScheduleII controlled substance, intending, knowing, and with reason to believe thatsuch substance would be unlawfully imported into the United States, inviolation of 21 USC §§ 959 and 960.38 Section 6(1)(a).39 Section 6(1)(b).40 Section 6(1)(c).41 Schedule 1.42 Emphasis added.[79] In his affidavit Mr Featherston says:43 This evidence will establish that (1) McKelvy and others agreed with eachother that cocaine would be imported from Peru to the United States; (2)McKelvy and others agreed with each other that cocaine would be exportedfrom the United States to Romania and New Zealand; and (3) McKelvy andothers agreed with each other that cocaine would be manufactured anddistributed for the purpose of importation into the United States.[80] Both the Indictment and Mr Featherston's affidavit make it clear that theUnited States' case alleges importation into the United States as well as exportationfrom there.[81] While it is accordingly not necessary to consider any additional content fromthe Indictment, there is further detail set out in the list of overt acts for count one, acharge of racketeering, which is a charge faced by Mr McKelvy's co-defendants. Tobe clear, this is not a conversation that applies only to the racketeering charge but italso relates to count two. The overt acts for count one include the following:44On or about July 21, 2020, MATTHEWS and JOHNSON attended a dinnermeeting in Bucharest, Romania, at which they discussed the pending cocainepurchase, including (1) the use of Beaumont, Texas as a base for receivingpayment, fabricating industrial machinery in which to conceal the drugs,and exporting the drugs from the United States; (2) possible methods oftransferring funds so as to evade law enforcement detection; and (3) theiragreement to expand the 200-kilogram purchase by an additional200 kilograms on consignment for 400 total kilograms of cocaine.[82] Based on the above quoted documents, I am satisfied that the alleged conduct,had it occurred within the jurisdiction of New Zealand, would constitute theNew Zealand offence of conspiring to import cocaine, a Class A drug for which themaximum penalty is imprisonment for not less than 12 months (as referred to in[75]–[77] above). In other words the domestic limb of the double criminality requirementfor an extradition offence is satisfied.[83] For completeness, I record here that the conversation above in the overt actsfor count one is also referred to in the ROC but there is not the same detail as to theuse of Beaumont, Texas as there is in the list of overt acts in the Indictment. This more43 Emphasis added.44 Emphasis added.limited detail becomes relevant in the third ground of appeal. The ROC refers to theconversation as follows:45On July 21, 2020, at a restaurant in Bucharest, the Undercover Agent met withMatthews and another man, later identified as co-defendant Marc PatrickJohnson ("Johnson"), whom Matthews described as his partner and thefinancier of the planned drug transaction. Over the course of the meeting,Matthews and Johnson discussed the pending cocaine delivery, including thefact that the cocaine would be shipped from Peru to Beaumont, Texas, inthe United States, and from there to Romania and finally New Zealand.Matthews and Johnson both agreed to this plan, and further agreed that thequantity of cocaine would be increased to 400 kilograms. A recording of thismeeting will be available as evidence at trial.[84] If the extradition court was required to assess the domestic limb of the doublecriminality requirement for an "extradition offence" simply on the basis of the ROC(without consideration of the Indictment and Mr Featherston's affidavit) as wasoriginally submitted on behalf of Mr McKelvy in written submissions, this raises theissue of whether the passage immediately above from the ROC establishes animportation under New Zealand law.[85] Having regard to the concession on behalf of Mr McKelvy in oral submissionsthat the Court may consider documents beyond the ROC, this argument falls away inrelation to the first ground of appeal. But as will become apparent, it will be necessaryfor the Court to consider the meaning of "import" under New Zealand law whenaddressing the third ground of appeal (whether there is a prima facie case), as the Courtmay only consider the ROC (and SROC) for that purpose.[86] It is, therefore, convenient to consider the meaning of "import" underNew Zealand law here as it forms part of the first ground of appeal. My decision onthis issue will be applied in discussion of the third ground of appeal.[87] The issue is whether the Judge was correct to hold that New Zealand law doesnot require Customs to be cleared for there to be a drug importation and that it issufficient if the drugs are only present in transit when they arrive within theNew Zealand territorial jurisdiction.45 Emphasis added.[88] Mr Mansfield submits the Judge was wrong in his decision on the meaning of"import". Mr Thompson submits the Judge's interpretation was correct.[89] I start with a consideration of the two cases that Mr Mansfield relies on: R vHancox and R v Atias (No 2).[90] In Hancox the Court of Appeal considered an appeal by Ms Hancox, who hadbeen charged with two counts of importing a Class B controlled drug (MDMA). Herrole had been to retrieve a package from a Post Office box in Auckland. Two parcelscontaining tablets of the drug were found in the Post Office box by New ZealandCustoms officers. The first parcel was collected by Customs officers and in relationto the second, the majority of tablets were seized by Customs officers with theremaining tablets left in the Post Office box. Ms Hancox collected the second parceland was apprehended. She claimed she did not know what was in the parcel and shewas simply delivering it to another individual.[91] Ms Hancox applied to have the importation counts in the indictment quashedon the basis that the importing had ended by the time she became involved. The trialJudge refused the application and held that Ms Hancox's act of uplifting the parcelfrom the Post Office box occurred at a time when the process of importation had notbeen completed. The issue on appeal was when did the process of importation end.[92] The Court of Appeal noted that the word "import" is not defined in the Misuseof Drugs Act, nor is there any reference in the legislation to when the act or process ofimportation ends. The Court further noted the definition of importation under s 47(1)of the Customs Act 1966, which provided that:46For all the purposes of this Act, goods shall, except where otherwise expresslyprovided, be deemed to be imported into New Zealand if and so soon as in anymanner whatever, whether lawfully or unlawfully, they are brought or comewithin the territorial limits of New Zealand from any country outside thoselimits.46 R v Hancox, above n 33, at 62.[93] The Court said that the Customs Act "understandably fixes on the earliest timeat which importation for that purpose [the levying of duty] could properly beconsidered to have occurred".47[94] The Court then considered that "import", in the Misuse of Drugs context,should be "accorded its ordinary meaning of to introduce or bring in from abroad orto cause to be brought in from abroad".48 The Court stated:49"To import" involves active conduct; and the bringing of goods into thecountry or causing them to be brought into the country does not cease as theaircraft or vessel enters New Zealand territorial limits. Importing intoNew Zealand for the purposes of s 6(1)(a) is a process. It does not begin andend at a split second of time. The element of importing exists from the timethe goods enter New Zealand until they reach their immediate destination. Itfollows that, as was the case in Saxton v Police, the importer may be convictedunder s 6(1)(a) even though the goods are intercepted by customs and neverreach the addressee – or are otherwise disposed of in transit. But the processdoes not end so long as the goods remain in transit, that is until any shippingand customs formalities are completed and the consignment is available to theconsignee at its immediate destination. In Bell v R (1983) 8 CCC (3d) 97, 104,Dickson J expressed the concept in this way:The elements of an offence of importing are present as soon asthe goods cross the border, but the offence is not over and donewith until the goods have reached their intended final destinationwithin Canada. Accordingly, a charge could be laid relating to thepoint of entry or of destination or anywhere in between.[95] On the facts, the Court found that the final step in the importation was thedelivery of the package containing the drugs at the Post Office box. Accordingly, theimportation was complete before Ms Hancox uplifted the package and her convictionon the importation count was quashed.[96] The second case relied on by Mr McKelvy is R v Atias (No 2). In that case theHigh Court considered an application by the defendants, Messrs Atias and Ban-Abu,at the end of the Crown case trial to dismiss charges of importing a Class B controlleddrug (MDMA) and possession of the drug for supply under s 347 of the Crimes Act1961 (the predecessor of s 147 of the Criminal Procedure Act 2011).47 At 62.48 At 62.49 At 62 (emphasis added).[97] Another defendant, Ms Birak, brought a suitcase of MDMA tablets intoNew Zealand, arriving at Auckland International Airport from Amsterdam. Shepassed through Customs and Immigration New Zealand at Auckland Airport withoutincident and stayed in a hotel. Around a week later Mr Ban-Abu arrived at AucklandAirport from Thailand and Mr Atias arrived from Amsterdam. The group met up.They were later apprehended while Ms Birak walked with the suitcase of MDMA toMr Ban-Abu's room at a hotel.[98] It was argued on behalf of Messrs Atias and Ban-Abu that the act ofimportation was complete by the time Ms Birak had cleared Customs, and at the latest,by the time she had arrived at her hotel, despite others being the intended ultimateconsignees.[99] The trial Judge, Harrison J, held that Hancox stands for the proposition, amongothers, that the process of importation lasts for the period between goods enteringNew Zealand territorial airspace and reaching their "immediate destination". Further,that the concept of importing is concerned with those acts which are designed to bringgoods from outside New Zealand to a point where they are available to the intendedconsignee, such that any involvement by the importer or a third party up to that pointfalls within the category of facilitating importation.50[100] Like Hancox, Atias (No 2) was concerned with actions by the defendants whichtook place after the goods had cleared Customs, and whether the process ofimportation had ended before their acts. To that extent those cases do not assistMr McKelvy.[101] Mr Mansfield, however, refers to other statements of the Court of Appealwhich the Court in Hancox said supported its interpretation of "import". The Courtreferred to an earlier decision of the Court of Appeal in Saxton v Police, where theaccused had posted a parcel containing hashish in England addressed to a named50 R v Atias (No 2), above n 33, at [14].person at a New Zealand address, and which on arrival in New Zealand wasintercepted by Customs.51 The Court quoted from the judgment in Saxton:52On the ordinary dictionary meaning of 'import', the appellant's action inposting the parcel of drugs to New Zealand with the intention that it should bereceived by some person in this country whom he named as addressee was anact of importing within the meaning of the Misuse of Drugs Act 1975[102] Mr Mansfield also refers to the following passage from Hancox:53We agree, [referring to the passage from Bell v R at [94] above] and add onlythat the goods have reached their immediate destination when they haveceased to be under the control of the appropriate authorities and have becomeavailable to the consignee or addressee.That conclusion is reinforced by two further considerations. One is that theadded words, import "into New Zealand", connote bringing in goods toanywhere inside New Zealand. The other is that, in as much as the statutoryfocus is on the acts of individuals, importing is concerned with those actsdesigned to bring the goods from outside New Zealand to the point where theyare available to the intended consignee. ...[103] In reliance on both Hancox and Atias (No 2), Mr Mansfield makes thesubmission that the fundamental point is that the meaning of "importation" is to beinterpreted in the context of the purpose of the Misuse of Drugs Act, which is toprevent the illicit use of drugs in New Zealand. Mr Mansfield says where drugs passthrough in transit only, without being stripped, and without any intention that theyattempt to pass through Customs, that purpose is not engaged. Mr Mansfield says theDistrict Court Judge did not address this argument in his decision, and that was afundamental flaw.[104] In response, Mr Thompson submits that while the introduction into theNew Zealand market of illegal drugs to be consumed here is certainly part of themischief that the Misuse of Drugs Act is intended to address, it is not all of it. TheMisuse of Drugs Act is also targeted towards offending which has international effects.Mr Thompson submits the most obvious example of this is the offence of exportingcontrolled drugs from New Zealand,54 which is plainly not offending which results in51 Saxton v Police [1981] 2 NZLR 186 (CA).52 R v Hancox, above n 33, at 62 citing Saxton v Police, above n 51, at 188.53 R v Hancox, above n 33, at 63.54 Misuse of Drugs Act, s 6(1)(a).the use of illicit substances by people in New Zealand. He notes that s 10 of the Misuseof Drugs Act also makes it an offence to do acts in New Zealand to aid offences againsta corresponding law of another country. Again, Mr Thompson says this is notoffending that has its effects in New Zealand, which further demonstrates theinternational purposes of the Misuse of Drugs Act. He submits this is consistent withNew Zealand's obligations under the United Nations Single Convention on NarcoticDrugs 1961 (Single Convention) and the United Nations Convention on PsychotropicSubstances 1971, which preceded the introduction of the Misuse of the Drugs Act.[105] In the Canadian decision of R v Geesman the Court, in determining themeaning of "import" in the Narcotic Control Act 1970 (in which "import" was notdefined), considered the dictionary meaning of "import" as well as drawing onCanada's obligations under the Single Convention.55[106] Defence counsel in Geesman argued that the defendant had brought hashishinto Canada for the sole reason of carrying it across the country to transport it acrossthe United States/Canadian border for sale in the United States. It was contended thatthe defendant was merely transporting the hashish in transit and had no intention ofimporting the drug into Canada.[107] On the facts, I accept the "in transit" argument made by Mr Mansfield in thiscase is different as the defendant in Geesman had in fact passed through Customs.Nevertheless, it is interesting to note the Court's consideration in that case of the SingleConvention in determining the meaning of "import" in the Narcotic Control Act.[108] The Court said that there is one central idea conveyed for the meaning of"import" and for that of importation, and that is the introduction or bringing into acountry articles and merchandise from abroad or from an external source.56 The Courtreferred to the argument of defence counsel in general terms as follows:[33] In the present case the argument of defence counsel, in its general terms,seeks to advance the proposition that, by what defence counsel conceives tobe the correct application of the principle of strict construction, there was noimportation by the prisoner into Canada of the narcotic in his possession for55 R v Geesman (1970) 13 CRNS 240 (Que SP).56 At [15].the reason that, although he had brought the forbidden substance into Canadafrom an outside source, his intention in so doing was merely to carry it intransit through Canada for the purpose of exporting the narcotic to the UnitedStates and that, because he had no intention of using the hashish in hispossession for disposal in Canada but merely to export the same from Canada,he therefore had no intention of importing into Canada the proscribedcommodity in the sense in which the word "import" is used in the NarcoticControl Act.[109] The Court then referred to the Single Convention and stated:57 Accordingly Canada was committed, under her treaty obligations, tocombat the pernicious evil born of the illicit traffic in narcotic drugs withinher frontiers as well as to suppress the illegal importation into and theexportation from the limits of her national domain of the substances sointerdicted.[110] The Judge noted the definitions of "import" and "export" in the SingleConvention:[41] Article (1), s. (1)(M) of the "Single Convention" defines the words"import" and "export" in the following terms: "'Import' and 'export' mean intheir respective connotations the physical transfer of drugs from one State toanother State, or from one territory to another territory of the same State" andin this definition there is expressed the same general meaning as is given bythe dictionaries to the words "import" and "export".[111] The Judge then went on to say:58 I conclude that the "Single Convention" provides a powerful assistance indetermining the proper meaning to be ascribed to the words "import intoCanada" as used in s. 5(1) of the Narcotic Control Act.[112] In conclusion, the Judge said:[46] I find that there is no ambiguity nor any equivacation in the words"import into Canada" set forth in s. 5(1) of the Act concerned and, on applyingto them their ordinary and grammatical sense, it is made abundantly clear thatthe intent of Parliament is to prohibit the illegal bringing in of narcotics toCanada from an external source, no matter under what circumstances the illicitintroduction into the country takes place and regardless of the meansemployed in the transporting across the national frontiers of the forbiddensubstance.57 At [40].58 At [45].[113] The discussion in Geesman and the Court's use of the Single Conventionassists in deciding whether the definition of "import" should be narrowed in the wayMr Mansfield seeks to do. The decision supports Mr Thompson's submission that themischief the Misuse of Drugs Act is designed to address, is wider than the introductionof illegal drugs to be consumed in this country.[114] There is a decision of this Court directly on point and which supports JudgeWinter's interpretation of "import". In R v Barreiro-Teixeira the accused had flowninto Auckland carrying drugs.59 He was in transit to his ultimate destination of Japanand his luggage was never to clear Customs. While it is not explicitly stated in thedecision, it is clear from other related judgments that the charge the accused faced wasa charge of importing.[115] At the conclusion of the defence case, defence counsel submitted the chargeshould be taken away from the jury and the accused discharged under s 347 of theCrimes Act on the grounds there was insufficient evidence that the accused intendedto bring the drugs into New Zealand. While the issue primarily turned on the accused'sknowledge that he would be stopping in Auckland en route to Japan, Venning J had nohesitation in holding:[10] That the accused and the drugs were only in New Zealand in transit issufficient: R v Smith (Donald) [1973] QB 924 and R v Geesman (1970) 13CRNS 240 and US v Pentapati 484 F 2d 450 (1973) and R v Martin (1973) 21CRNS 149, 153.[116] Mr Mansfield is critical of the brevity of the reasoning in Barreiro-Teixeira.He also submits that in R v Smith (Donald), the charge was not brought under theEnglish equivalent of the New Zealand Misuse of Drugs Act but under the EnglishCustoms and Excise Act 1952. He submits for this reason that decision does not assist.In relation to US v Pentapati, under the particular legislation considered in that case,Mr Mansfield says importation carried a different meaning to that which was adoptedby the Court of Appeal in Hancox. As to R v Martin, in that case the Court adopted apurposive approach to interpreting the meaning of importation and found that when astereo speaker (containing controlled drugs) crossed the territorial border of Canada59 R v Barreiro-Teixeira, above n 32.and came to rest at a customs warehouse, it had been "imported" for the purposes ofthe Narcotic Control Act.60 Mr Mansfield submits that case was different; the drugswere in fact intended for use in Canada.[117] Regardless of the criticisms Mr Mansfield makes of the cases cited byVenning J, I consider the approach by Venning J is consistent with the ordinarymeaning of import.[118] I accept Mr Thompson's submission that notwithstanding the reference togoods reaching an intended consignee in Hancox, that decision cannot be read asrequiring goods to clear Customs in order for there to be an importation, or evenrequiring there to be an intention that the goods would clear Customs. The decisionis simply that importation can be a continuing act, which only ends when the goodshave been made available to their intended consignee. Any act of bringing the drugswithin New Zealand's territorial limits still constitutes an act of importation inaccordance with Hancox. The word "import" is not qualified or limited by arequirement that the drugs are for use in this country.[119] In summary on the first ground of appeal, Judge Winter did not err in holdingthat the offence for which Mr McKelvy's surrender is sought is an "extraditionoffence".[120] The extradition court, in assessing the domestic limb of the double criminalityrequirement, is able to consider not just the ROC but all documents submitted by theUnited States as part of the formal request for surrender.[121] Even if the extradition court is limited to considering the ROC when assessingthe domestic limb of the double criminality requirement, there would nevertheless bean extradition offence in this case. If the statement in the ROC "that the cocaine wouldbe shipped from Peru to Beaumont, Texas, in the United States, and from there " isconstrued to mean the drugs would simply be in transit, for all the reasons discussedabove, the domestic limb of the double criminality requirement would still be satisfied.The District Court Judge was correct when he held that under New Zealand law,60 R v Martin [1973] OJ No 137 (ONHC).Customs does not need to be cleared for there to be a drug importation. It is sufficientif the drugs are only present in transit to another country to constitute importation.[122] The first ground of appeal fails.Second ground of appeal[123] Mr McKelvy's second ground of appeal takes issue with Judge Winter havingreferred to the details of the 21 July 2020 meeting as set out in the Indictment. At thecommencement of her oral submissions, Ms Stuart summarised this ground of appealby submitting that the Judge erred in his reference to the United States Indictment inthe context of deciding both:(a) that there was an extradition offence (s 24(2)(c)); and(b) that a prima facie case against Mr McKelvy was established(s 24(2)(d)(i)).[124] As already noted, during the course of her oral submissions Ms Stuartconceded that the Judge could consider the United States Indictment in assessingwhether there was an extradition offence. Paragraph (a) above therefore falls awaywith that concession. This ground of appeal, accordingly, only requires considerationin respect of (b) above.[125] The part of the Judge's decision complained about is as follows:61[50] It is the Applicant's position that the case against Mr McKelvy and hisco-defendants is based on the conspiracy to actually import the cocaine intothe United States and then export it to Romania and New Zealand. In supportof this submission, counsel for the Applicant cites a passage fromMr Featherston's affidavit wherein Mr Featherston refers to the evidence thatwill establish this. Counsel also refers to Count 1 of the US Indictment in theROC, which describes a conversation at a dinner meeting in Romania on21 July 2020 attended by Murray Matthews and Marc Patrick Johnson, wherethey discussed the use of Beaumont, Texas as a base for receiving payment,fabricating industrial machinery in Beaumont in which to conceal the drugsand then exporting the drugs from the United States. It is not alleged that thecocaine was to simply pass through United States waters, on its way toelsewhere.61 The United States of America v McKelvy, above n 2.[126] It is abundantly clear that this part of Judge Winter's decision was concernedwith the s 24(2)(c) step of the process where, as discussed above, the Judge's task wasto determine whether the conduct alleged constituted an extradition offence. TheJudge was not considering whether or not the United States had established a primafacie case. On the face of the decision it is clear the Judge was not utilising thecontents of the United States Indictment when undertaking the s 24(2)(d)(i)assessment. The Judge explicitly confined his reference to the Indictment to thes 24(2)(c) part of the process.[127] Further, the Judge commenced the paragraph in his decision in which he founda prima facie case with the words "I assess the ROC evidence ".62 It is clear fromthat paragraph that the Judge was considering evidence in the ROC and not othermaterial before the Court, including the Indictment.[128] Finally, the Judge concluded his assessment as regards a prima facie case bystating:[71] In my view the evidence produced at the extradition hearing by theadmission of the ROC is sufficient to justify Mr McKelvy's trial if the conductconstituting the offence had occurred in New Zealand.[129] Again, it is clear that the Judge was only utilising the ROC and not theIndictment for that aspect of his decision.[130] The second ground of appeal fails.Third ground of appeal[131] Mr Mansfield accepts the evidence in the ROC establishes a conspiracy andthat Mr McKelvy had joined the conspiracy by the time of the telephone conversationbetween Mr McKelvy and the undercover agent on 22 September 2020 (refer [22]–[26] above). The written submissions on behalf of Mr McKelvy state "[t]he appellanthas clearly entered the conspiracy at this point".62 At [68].[132] But what Mr Mansfield submits is that the Judge failed to properly considerwhether the elements of a conspiracy to import into the United States were established,as charged. As a second argument, Mr Mansfield submits there is no evidence thatMr McKelvy knew of a plan for cocaine to transit through the United States let alonefor it to enter onto United States soil, or evidence from which such knowledge couldbe inferred.[133] Mr Mansfield submits the United States was required to establish knowledge,agreement and intention63 on the part of Mr McKelvy to carry through with thecommon design of that conspiracy.[134] Mr Mansfield submits it is insufficient Mr McKelvy was part of a conspiracyto import cocaine into New Zealand. That is a different issue. He submits that in orderto secure a conviction, the Crown must prove the conspiracy charged, not some otherconspiracy that is not charged.64[135] Mr Mansfield submits the Judge did not consider the issue of whetherMr McKelvy actually knew that the cocaine would transit through (or enter) theUnited States. The Judge, therefore, did not assess whether a prima facie case hadbeen established on the conspiracy charge, which is conspiracy to import into theUnited States and export from the United States. Rather, Mr Mansfield submits theJudge considered whether a prima facie case had been established of a conspiracy to"import cocaine into New Zealand via Romania and the United States" – a conspiracythat was not charged.[136] Mr Mansfield submits that although it is clear that the cocaine was intended tobe imported into New Zealand from Peru, that is insufficient evidence thatMr McKelvy joined a common design to import cocaine into the United States.63 Citing in support R v Gemmell [1985] 2 NZLR 740 (CA) at [743]–[745].64 Citing in support R v Beazley HC Auckland CRI-2006-004-3200, 18 May 2007 (Ruling No 14) at[27].[137] The part of the Judge's decision where he found a prima facie case is brief. Ihave already set it out at [59] above. I repeat it here for ease of reference:[68] I assess the ROC evidence as being highly compelling and incriminatingof Mr McKelvy's involvement in the conspiracy to import cocaine. Theevidence provides a strong inference from Mr McKelvy's conduct, that he wasa member of an alleged transnational conspiracy to purchase and importcocaine into New Zealand via Romania and the United States. The directevidence and the inferential evidence clearly link Mr McKelvy to thatconspiracy. I am therefore reasonably satisfied that the United States hasestablished a prima facie case against Mr McKelvy to the extent that the ROCwould justify Mr McKelvy's trial under the Misuse of Drugs Act, if theconduct constituting the offence had occurred in New Zealand. As I havepreviously stated, the elements of the "extradition offence" have beenestablished in this proceeding.[138] Mr Mansfield's first criticism focuses on the Judge's finding as to what theconspiracy was. In the relevant part of the paragraph quoted above, the Judge said:65The evidence provides a strong inference from Mr McKelvy's conduct, thathe was a member of an alleged transnational conspiracy to purchase andimport cocaine into New Zealand via Romania and the United States.[139] I agree with Mr Thompson's submission that while the Judge's finding isexpressed imprecisely, there is a finding that the cocaine would be imported into theUnited States. The Judge found the conspiracy included the cocaine coming via theUnited States (and eventually to New Zealand). Even if the cocaine was only to be intransit, that was an import into the United States. I do not accept Mr Mansfield'ssubmission that the Judge found there was a prima facie case simply of conspiring toimport cocaine into New Zealand.[140] I now review the evidence that the United States says supports the finding of aprima facie case. I start with the approach to be taken by an extradition court whenassessing whether there is a prima facie case for the purposes of s 24(2)(d)(i). TheCourt of Appeal discussed this issue in Ortmann v United States of America.6665 Emphasis added.66 Ortmann (CA), above n 21. The Supreme Court in Ortmann was not required to determinewhether a prima facie case was established. Leave was refused on that question.Summarising from the majority judgments of the Supreme Court in Dotcom v UnitedStates of America,67 the Court of Appeal said:68The ROC procedure does not alter the test of eligibility under s 24. It allowsthe requesting state to rely on a summary of the evidence, rather than its detail,as the basis for a prima facie case. It was negotiated between states on areciprocal basis, and is intended to accommodate differences in legal systemsthat can give rise to difficulties in extradition proceedings. Specifically, itexcludes domestic admissibility rules. Reliance is placed on certification,which requires that a degree of trust be placed in a requesting state'sprosecutors.[141] The Court of Appeal in Ortmann referred to and agreed with the principles setout in the judgment of the Supreme Court of Canada in MM v United States ofAmerica,69 which post-dated the decision of the New Zealand Supreme Court inDotcom.[142] The Court of Appeal then said:70 The committal phase plays an important but carefully circumscribed rolein protecting the rights of the person sought. The statutory question – whetherthere is evidence justifying committal for trial had the conduct happened inCanada – exhaustively defines the extradition judge's role. The meaningfuljudicial assessment required under Ferras does not extend to assessing thelikelihood of conviction and deciding, as the extradition judge had done, thatno reasonable jury could conclude the mother intended to deprive the fatherof possession of the children. The extradition judge "is concerned only withthe essential elements of the offence and any other conditions on which theprosecution bears the evidential burden of proof", and the test is "whetherthere is any admissible evidence that would, if believed, result in aconviction". Nor is the extradition judge to assess the "quality, credibility orreliability" of the evidence, beyond a limited weighing to determine whetherthere is a plausible case.[143] As is apparent from the Court of Appeal judgment,71 the ROC is admissiblenot merely as to form but also as to content. Eligibility for surrender is determined onthe ROC, even if it contains evidence that might not be admissible in a domestic trialsuch as hearsay.72 That position is supported in a decision of the Supreme Court of67 Dotcom v United States of America, above n 11.68 Ortmann (CA), above n 21, at [106(c)] (footnotes omitted).69 MM v United States of America [2015] SCC 62, [2015] 3 SCR 973.70 Ortmann (CA), above n 21, at [112] (footnotes omitted).71 Refer Ortmann (CA), above n 21, at [106(c)].72 See also Dotcom v United States of America, above n 11, at [244].Canada in United States of America v Ferras, where the Court held that hearsay in arecord of the case was unobjectionable.73[144] The position of the United States, in accordance with the decision of the Courtof Appeal in Ortmann and the Supreme Court in Dotcom, is that the ROC is admissiblefor all purposes and the Court does not need to enquire into the domestic admissibilityof any of its content. However, Mr Thompson's position is that to avoid unnecessarycontroversy, the submissions on behalf of the United States treat the evidence inaccordance with the New Zealand law on co-conspirator's hearsay.74[145] Section 22 of the Evidence Act 2006 provides that hearsay statements aregenerally inadmissible. However, s 22A preserves the common law co-conspirators'exception to the hearsay rule. It provides as follows:22A Admissibility of hearsay statement against defendantIn a criminal proceeding, a hearsay statement is admissible against adefendant if—(a) there is reasonable evidence of a conspiracy or jointenterprise; and(b) there is reasonable evidence that the defendant was a memberof the conspiracy or joint enterprise; and(c) the hearsay statement was made in furtherance of theconspiracy or joint enterprise.[146] As regards s 22A(a), the Court of Appeal in R v Messenger (applying the co-conspirator's rule prior to the enactment of s 22A) said:75 Statements made by other persons about what they are intending to do,against the background of their statements about what they have done,however, can be led as evidence of the state of mind of those other persons atthe time of speaking. Such statements are led not to prove the truth of theparticipation of a person who is not a party to the conversation, but as factsfrom which the existence of the agreement or combination to engage in anillegal common enterprise may be inferred. The existence of a conspiracy canthus be shown by the statements of all alleged participants, including whatthey have said about the accused 73 United States of America v Ferras [2006] SCC 33, [2006] 2 SCR 77.74 Evidence Act 2006, s 22A.75 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [13].[147] As to s 22A(b), it is well-established that a defendant's membership of aconspiracy or joint enterprise must be proved to the requisite standard by evidenceother than statements which have been made in the absence of the defendant. As theCourt of Appeal said in Messenger:76 It is necessary for the Crown, having shown that there is reasonableevidence of a conspiracy or joint enterprise, to prove the accused'smembership of it to the requisite standard by independent evidence, externalto the statements which have been made in the absence of the accused.[148] The requisite standard of "reasonable evidence" for both s 22A(a) and s 22A(b)is not a stringent standard, and the threshold is lower than the balance ofprobabilities.77 It is also not necessary for a defendant to know the identities of all theparties of a conspiracy or joint enterprise.78[149] As regards s 22A(c), the Court of Appeal in Messenger stated:[20] As noted at [11(c)], the third matter that must be shown is that the actsand statements sought to be admitted were made and done for the purpose ofadvancing the common design – see Morris (Lee) at [31]. ...[21] A theory of ratification, however, may allow a statement made by a co-conspirator before a person joined the conspiracy to be admitted in order toprove the origin, character and object of the conspiracy but not the person'sparticipation in the conspiracy – see Phipson at [31]–[49]. As Chambers Jsaid, in R v Mahutoto [2001] 2 NZLR 115 (HC) at [35], when a person decidesto join a conspiracy after its inception, he or she is taken to have accepted theplan as it has developed and the steps that have already been taken towardsarranging the intended unlawful acts. He or she is thus taken as impliedlyratifying the steps already taken by the co-conspirators in furtherance of thecommon purpose.[150] The Court of Appeal has summarised the law of conspiracy in New Zealand asfollows:79 The essence of the conspiracy is an agreement to pursue a course of conductwhich, if carried out, would amount to or involve the commission of anoffence by one or more of the parties to the agreement. See R v Cuthbertson[1980] 2 All ER 401, 403. The offence turns on an agreement and does notnecessitate any further involvement in the commission of the crime. Theconspiracy is complete once the agreement has been made.76 At [18].77 Clausen v R [2021] NZCA 396 at [32] citing Kayrouz v R [2014] NZCA 139 at [22], which citedR v Qiu [2007] 2 NZLR 433 (CA) and R v Qiu [2008] NZSC 51, [2008] 1 NZLR 1 at [28].78 R v Messenger, above n 75, at [19] cited in Clausen v R, above n 77, at [36].79 R v Greenfield CA322/01, 5 February 2002 at [18].Evidence of the conspiracy[151] I confine the Court's consideration to the evidence in the ROC and SROC.There is the following:(a) Mr Cui began contact with the undercover agent in May 2020, seekingto buy cocaine and have it brought to New Zealand. He was acting withanother person.(b) Mr Matthews joined the negotiations, contacting the undercover agentand confirming his relationship with Mr Cui.(c) After further conversations between the undercover agent, Mr Cui andMr Matthews, the sum of NZD $50,000 was paid into a United Statesbank account as a deposit for the drug purchase.(d) To advance the proposed cocaine purchase, Mr Matthews andMr Johnson travelled to Romania. Mr Johnson was introduced to theundercover agent as the partner of Mr Matthews and the financier ofthe transaction. At a meeting between the three men, it was discussedthat the cocaine (400 kg) would be shipped from Peru to Beaumont,Texas, in the United States, and from there to Romania and finally NewZealand.(e) Mr Lazar, a Romanian associate of Mr Matthews and Mr Johnson,made contact with the undercover agent and requested an additionaldelivery of cocaine for himself.(f) Further sums amounting to USD $629,182 were transferred aspayments towards the purchase of the 400 kg of cocaine.(g) Arrangements were made for the receiving of the cocaine inNew Zealand once it arrived by container ship. Mr Matthews advisedthe undercover agent of the name of the person who would accept thecocaine in New Zealand. Mr Matthews facilitated contact between theundercover agent and the New Zealand receiver, Mr McKelvy, byproviding Mr McKelvy's name and passing on a password for him toverify his identity.(h) Mr McKelvy then had communications with the undercover agent inwhich Mr McKelvy confirmed his identity, his connection toMr Matthews and Mr Johnson, and his role in the plan as theNew Zealand receiver. They discussed the origin and quality of thecocaine, and how it would be shipped. Mr McKelvy also sought toassure the undercover agent that he and his accomplices hadsuccessfully imported drugs into New Zealand before and confirmedhis identity.(i) The parties continued with the arrangement despite apparent difficultieswith the funds. Mr Matthews and Mr Johnson met again with theundercover agent in Romania. They agreed the balance of the purchaseprice would be paid in Bitcoin, which Mr McKelvy was to arrange.(j) Mr Matthews and Mr Johnson were arrested when attending a furthermeeting with the undercover agent.(k) Mr Cui continued to communicate with the undercover agent. Heindicated that the balance of the purchase price would be arrangedthrough a Hong Kong money launderer, and that Mr McKelvy wasorganising this.[152] The evidence in the ROC summarised above is reasonable evidence of aconspiracy to import cocaine into the United States (even if it was only in transit), andfrom there to export it to Romania and New Zealand.Evidence that Mr McKelvy was a member of the conspiracy to import cocaine into,and export cocaine from, the United States[153] As already noted, Mr McKelvy accepts the evidence establishes he was part ofa conspiracy with his alleged co-conspirators. However, his position is that there isno evidence he knew the plan involved cocaine being shipped to, and then from, theUnited States, and there is no evidence from which such knowledge can be inferred.[154] I start with what would be admissible evidence under New Zealand law(despite hearsay evidence being admissible in an extradition proceeding) to prove thisaspect of a prima facie case.[155] In his conversation on 22 September 2020 with the undercover agent,Mr McKelvy confirmed his role as the receiver in New Zealand. He said "there is acontainer coming and I'm to arrange a freight forwarder to receive it and a[n]A[d]dress for it to be dropped to Then once it passes clearance I arrange with marc[Johnson] and Angelo [Matthews] to pickup. And when finished I get paid". Whenhe was asked by the undercover agent as to whether he was aware the shipment he wasreceiving consisted of 400 kg of cocaine, Mr McKelvy replied "Yes, I'm very clearbut this will work if we get the paperwork bang on".[156] I consider this evidence shows that the role that Mr McKelvy was to carry outwas an integral part of the overall plan to ship the cocaine from Peru, to import it intothe United States, and from there export it to Romania and New Zealand.[157] There is nothing that indicates that Mr McKelvy was other than a willingparticipant in the plan and was taking active steps towards its furtherance.Mr McKelvy emphasised the importance of getting the "paperwork" done correctlyand requested information from the undercover agent to enable him to carry out hisrole, including the contact information for the freight forwarder who was to facilitatethe shipment.[158] There is further evidence, adopting the admissibility rules in an extraditionhearing, of statements from Mr Cui, Mr Matthews and Mr Johnson in communicationswith the undercover agent. Each of them referred to Mr McKelvy when they wereacting in furtherance of the conspiracy in their dealings with the undercover agent.[159] Their hearsay evidence indicates that Mr McKelvy's role in the conspiracywent beyond being simply the planned receiver of cocaine in New Zealand. He wasalso involved in the financial arrangements. At the 17 November 2020 meeting whenthe undercover agent met Mr Matthews and Mr Johnson in Romania, Mr Johnsonexplained that "Doc" (Mr McKelvy) was on "standby" preparing to facilitate a Bitcointransfer as part-payment for the cocaine.[160] Then, after Mr Johnson and Mr Matthews had been arrested, Mr Cui, inresponse to the undercover agent's expressed concern that he was still owed moneyfor the cocaine, said that "Doc" (Mr McKelvy) would work on getting the money andthat "Doc" was in contact with their money laundering intermediary based in HongKong. The evidence is that Mr Cui expressed a reluctance to approach any otherperson, explaining "Our circle is small. Other than me, rush [Johnson], angel[Matthews, and] doc [McKelvy]. No other people knows [sic] about what we doing".[161] As to Mr McKelvy's knowledge that the cocaine was to be shipped to theUnited States and then from there to Romania and New Zealand, I consider thatknowledge can be inferred from the evidence in the ROC which demonstrates, asMr Thompson puts it, his "deeply embedded role" in the conspiracy. I have alreadyreferred to the relevant evidence: responsibility for sourcing Bitcoin digital currencyto complete payment for the cocaine; making the payment; getting the freightpaperwork "bang on"; and receiving the cocaine when it eventually reachedNew Zealand. Mr McKelvy emphasised to the undercover agent his experience ininternational drug importation. Also there was a very small circle of people involved.[162] The fact that the cocaine was to be "shipped from Peru to Beaumont, Texas, inthe United States and from there to Romania and finally New Zealand" was a centralpart of the overall conspiracy from at least 21 July 2020. As a core embedded memberof the conspiracy, I consider it can be inferred that Mr McKelvy must have been awareof that. That inference is "reasonably available".80 By his statements to theundercover agent it can be inferred as well, that Mr McKelvy agreed with and intendedto achieve the common goal of importing the cocaine into the United States andexporting it to Romania and New Zealand.80 Ortmann (SC), above n 28, at [521].[163] Even if the cocaine was only in transit in the United States, if that conduct hadoccurred in New Zealand, the authorities discussed under ground one of the appealenable the Court to find that goods in transit can be viewed as being imported intoNew Zealand.[164] I acknowledge the Judge's assessment of a prima facie case was brief and notas clearly worded as it might have been. But any error that the Judge may have madein making the assessment can be cured by the Court applying the proviso in s 73(3) ofthe Act which provides:(3) Despite subsections (1) and (2), if an appeal is against a determinationthat a person is eligible for surrender, and the court determines thatthere has been an error of law, it may nevertheless decline to reverseor amend the determination in respect of which the case has beenstated if it considers that no substantial wrong or miscarriage of justicehas occurred and that the determination ought to be upheld.[165] This Court has reviewed the evidence in the ROC and I am satisfied that theevidence would justify Mr McKelvy's trial if the conduct constituting the offence hadoccurred within the jurisdiction of New Zealand. The evidence establishes a primafacie case on a charge under s 6(1) and (2A)(a) of the Misuse of Drugs Act ofconspiring to import cocaine into New Zealand and export it to another country. Therequirement in s 24(2)(d)(i) is satisfied.[166] The third ground of appeal fails.Judicial review application[167] Despite initially framing the third ground of appeal on the basis of an error oflaw, both Ms Stuart and Mr Mansfield in their oral submissions say that the Judge'sfinding of a prima facie case was an error of fact and does not involve a question oflaw. Accordingly, Mr Mansfield submits that Mr McKelvy needs to advance his caseon the third ground by way of his judicial review application.[168] Mr Thompson submits that the third alleged error does raise a question of law.Further, he says the judicial review application is entirely duplicative of the points onappeal and should be dismissed.[169] I first address the issue of whether, what was initially styled as the third errorof law, is instead an error of fact which does not involve a question of law.[170] In Bryson v Three Foot Six Ltd, Blanchard J, giving the judgment of theSupreme Court, said:81[26] An ultimate conclusion of a fact-finding body can sometimes be soinsupportable – so clearly untenable – as to amount to an error of law: properapplication of the law requires a different answer. That will be the positiononly in the rare case in which there has been, in the well-known words of LordRadcliffe in Edwards v Bairstow, a state of affairs "in which there is noevidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in which thetrue and only reasonable conclusion contradicts the determination". LordRadcliffe preferred the last of these three phrases but he said that eachpropounded the same test. [171] As already set out, Mr Mansfield's submission on the third ground is, insummary, that the Judge erred in finding a prima facie case as there is no evidence ofa conspiracy to import cocaine into the United States and export it from there, and noevidence that Mr McKelvy was a member of that conspiracy and knew part of the planwas to import cocaine into the United States and export it from there. Mr Mansfieldalso submits there is no evidence from which such inferences could be drawn.[172] Adopting any of the formulations in Bryson v Three Foot Six above, thatsubmission amounts to an allegation that the Judge erred in law. It is not an allegationof a factual error.[173] In any event, reliance on the first cause of action in the statement of claim doesnot assist Mr McKelvy. That is because he pleads error of law rather than error of factin the statement of claim. The relevant paragraph in the first cause of action reads asfollows:3.8 The District Court contained errors in law in determining in respect ofcount 2 of the Superseding Indictment that the conduct alleged undercount 2 would have constituted a prima facie case of an offender [sic]under s 6(1)(a) of the Misuse of Drugs Act 1975, had it occurred inNew Zealand.81 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (footnote omitted).[174] I turn to address Mr Thompson's submission that the first cause of action isentirely duplicative of the appeal. In Ortmann the Supreme Court stated:82[587] We accept that if there were complete overlap between the grounds ofappeal and grounds of judicial review then it would be appropriate for thecourt to dismiss the judicial review claim without undertaking a full review ofthe duplicative grounds. [175] The first cause of action83 is headed "The District Court erred". There are eightparagraphs. The first six paragraphs plead errors of law. Apart from some minordifferences in wording which are not material, those six paragraphs mirror the first sixgrounds of appeal in the notice of appeal brought under s 68 of the Act.[176] The seventh paragraph of the statement of claim mirrors ground seven in thenotice of appeal. As already noted, at the commencement of the hearing Ms Stuartconfirmed that appeal ground seven (and eight) were not advanced. There was nosuggestion that appeal ground seven would be advanced through the statement ofclaim.[177] The final paragraph in the first cause of action is paragraph eight, which is setout in [173] above. It duplicates the ninth ground of appeal in the notice of appeal.[178] The first cause of action in the statement of claim is entirely duplicative of theappeal under s 68 of the Act and the second and third causes of action are not pursued.Accordingly, I will make an order dismissing the claim for judicial review.Result/orders[179] In accordance with the Court's powers in s 72 of the Act, I confirm thedetermination by the District Court Judge84 that Mr McKelvy is eligible for surrenderto the United States of America on the charge for which surrender is sought.[180] The appeal is dismissed.82 Ortmann (SC), above n 28.83 The only cause of action now relied on, the second and third causes of action having beenabandoned.84 Section 72(1)(a).[181] The application for judicial review is dismissed on the basis that it is entirelyduplicative of the appeal.Costs[182] I reserve costs. If costs are sought, in the first instance counsel should confer.If agreement on costs is reached between the parties, a joint memorandum is to be filedwithin 25 working days of the date of this judgment. If there is no agreement on costs,the United States is to file and serve its memorandum within five working days of thedate for the joint memorandum. Mr McKelvy is to respond by filing and serving hismemorandum within five working days of the date of service of the United States'memorandum.[183] Costs memoranda should not exceed four pages (excluding attachments). Iwill determine costs on the papers._____________________________Gordon J