New Zealand Case Law: Decisions & Judgments

Topic

Double criminality

Legal area

Court

15 Dec 2023

McKELVY v UNITED STATES OF AMERICA [2023] NZHC 3698

Citation

[2023] NZHC 3698
Court

High Court

The Court held the District Court did not err: under New Zealand law importation for the Misuse of Drugs Act does not require Customs clearance and goods merely in transit can constitute importation; the extradition court may consider the indictment and all documents in the formal request in applying the conduct test to satisfy double criminality; the ROC and SROC contained sufficient evidence to establish a prima facie case that would justify trial in New Zealand under the Misuse of Drugs Act; and the judicial review claim was duplicative and dismissed. The determination that the appellant i…
12 Jul 2021

ORTMANN v THE UNITED STATES OF AMERICA [2021] NZCA 310

Citation

[2021] NZCA 310
Court

Court of Appeal

The remitted task was limited to identifying judicial review issues not addressed in the case stated appeals; the Court found no such outstanding issues because the matters appellants relied upon had been addressed on the merits previously or were trial‑level issues not pertinent to the extradition prima facie inquiry; proposed fresh US expert evidence and the Privacy Act enforcement application were declined as not relevant to the limited extradition assessment; appeals remitted by the Supreme Court were dismissed and costs ordered against appellants.
26 Nov 2020

THE COMMISSIONER, THE NEW ZEALAND POLICE v RAE [2020] NZHC 3132

Citation

[2020] NZHC 3132
Court

High Court

The Court found the Commissioner had established reasonable grounds under s25 (and alternatively s24) to restrain the funds as proceeds of money‑laundering linked to alleged US Medicare frauds; s245 double criminality was satisfied. The Court held there was a material failure of disclosure in the without‑notice application but the failure was not deliberate or in bad faith and therefore not egregious sufficient to discharge the orders. The Court dismissed Mr Rae's abuse‑of‑process arguments, concluded no agency or arrangement binds the Crown to repatriate forfeited funds to the United States,…
4 Nov 2020

MATHIAS ORTMANN v UNITED STATES OF AMERICA [2020] NZSC 120

Citation

[2010] 1 NZLR 475
Court

Supreme Court

The Supreme Court held that double criminality is a necessary precondition to extradition under Part 3 of the Extradition Act 1999; s24(2)(c) requires satisfaction that the conduct is within the treaty offence, punishable in the requesting state by a maximum ≥12 months, and would constitute a like New Zealand offence punishable by ≥12 months; s131 Copyright Act criminalises knowingly dealing with infringing copies including digital files and provides an extradition pathway for counts 2 and 4–8 (safe harbours, incidental/transient copying and limitation provisions do not preclude liability on…
5 Jul 2018

ORTMANN v UNITED STATES OF AMERICA [2018] NZCA 233

Citation

[2018] 3 NZLR 475
Court

Court of Appeal

Double criminality remains a requirement under the Extradition Act and the NZ–US Treaty; in assessing eligibility under the ROC procedure courts transpose circumstances (including copyright status) rather than require proof of foreign law; digital files can constitute 'objects' and infringing copies under s131 Copyright Act 1994 and therefore criminal copyright liability can extend to online dissemination; the ROC in this case was properly certified, admissible and contained sufficient admissible evidence to justify committal on the mapped New Zealand offences (Crimes Act ss228,249,240,246,98…
20 Feb 2017

ORTMANN v THE UNITED STATES OF AMERICA [2017] NZHC 189

Citation

[2017] NZHC 189
Court

High Court

The High Court confirmed the District Court properly determined eligibility: the conduct alleged in the US superseding indictment, read in context, falls within Article II.16 (conspiracy to defraud) and, where applicable, is captured by NZ statutory offences (Crimes Act ss228,249,240 and s98A) deemed into the US–NZ Treaty by s101B; the Record of the Case and its s25 certificates were admissible and preserved evidence sufficient to establish a prima facie case under s24(2)(d); the Copyright Act s131 criminal provisions do not reach 'making available' online (that right was not criminalised in…
1 Mar 2013

USA V DOTCOM & ORS COA CA526/2012

Citation

COA CA526/2012
Court

Court of Appeal

The Court held that the Extradition Act's record of the case regime for exempted countries does not authorise general pre-hearing disclosure orders against a requesting state like the United States; s25 requires a summary of evidence and only those accompanying documents that are essential and not capable of summary, and the proper channel for seeking further material is the treaty mechanism (art 12) unless cogent evidence indicates abuse of process; accordingly the District Court's broad disclosure orders were quashed and the cross-appeal dismissed.

New Zealand Case Law

McKELVY v UNITED STATES OF AMERICA [2023] NZHC 3698

ORTMANN v THE UNITED STATES OF AMERICA [2021] NZCA 310

THE COMMISSIONER, THE NEW ZEALAND POLICE v RAE [2020] NZHC 3132

MATHIAS ORTMANN v UNITED STATES OF AMERICA [2020] NZSC 120

ORTMANN v UNITED STATES OF AMERICA [2018] NZCA 233

ORTMANN v THE UNITED STATES OF AMERICA [2017] NZHC 189

USA V DOTCOM & ORS COA CA526/2012