Court of Appeal Judgments of Public Interest

Judicial review — extradition — decision not to domestically prosecute — surrender decision — prosecutorial discretion — disproportionately severe punishment — irreducible life sentence — comity — New Zealand Bill of Rights Act, s 9 — Extradition Act 1999, s 30 — International Covenant on Civil and Political Rights — Extradition (United States of America) Order 1970.

The United States of America wishes to extradite Mr Dotcom from New Zealand where he is a resident to stand trial in the US on charges of criminal copyright infringement, racketeering, and wire fraud. The US alleges that Mr Dotcom was a member of the “Mega Conspiracy”, which the US claims earned revenue in excess of USD 175 million and resulted in losses to copyright owners of at least USD 500 million.

The Extradition Act 1999 (NZ) involves a two-stage extradition process: first, the District Court must determine whether a person for whom an extradition request has been made is eligible for surrender to the requesting country; and second, the Minister of Justice must determine whether the person should be surrendered. Following a decision of the New Zealand Supreme Court in 2020, the first stage was determined: Mr Dotcom and related co-defendants — Mr Ortmann, Mr van der Kolk and Mr Batato — were deemed eligible for surrender to face trial in the US. This appeal is concerned with issues arising under the second stage.

In 2021 the US was granted leave to withdraw its extradition application in respect of Mr Batato due to his terminal illness. In 2022, Mr Ortmann and Mr van der Kolk approached the New Zealand authorities seeking to plead guilty to equivalent New Zealand offences in a New Zealand court. They also offered to provide substantial assistance to the US in its prosecution against Mr Dotcom. After the US signalled willingness to forgo its right to seek extradition of Mr Ortmann and Mr van der Kolk, the New Zealand police prosecuted them. Both pleaded guilty and were sentenced in June 2023 to terms imprisonment in New Zealand.
In July 2023, Mr Dotcom invited the Commissioner of New Zealand Police to consider whether the Crown and US would agree to charge him in New Zealand as well. This invitation was declined.

In August 2024, the Minister of Justice issued his decision that Mr Dotcom was to be surrendered to the US under the Extradition Act. Before making his surrender decision, the Minister received and considered advice from officials. Despite the absence of any explicit requirement under the relevant provision of the Extradition Act, the Minister accepted advice that it would be effectively mandatory for him to refuse surrender if the likely sentence Mr Dotcom would receive in the US would amount to disproportionately severe punishment. This was due to the fact that the issue of disproportionately severe sentences engages s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). The Minister also accepted the advice that a sentence would only be disproportionately severe if it would be so excessive as to “shock the conscience” of properly informed New Zealanders, or if it would amount to an irreducible life sentence.

In applying those considerations to Mr Dotcom’s case, the Minister took into account advice from a US legal sentencing expert who was of the view that, if convicted and sentenced in the US, Mr Dotcom faced a possible sentence range of 30 to 150 years’ imprisonment in the US, and there was a significant chance he would receive a sentence of at least 30 years. This contrasted with the likely New Zealand sentence, which the Minister considered would be in the range of 12 to 15 years’ imprisonment. Although in the US none of the offences with which Mr Dotcom had been charged carry a life sentence, the Minister accepted that the practical effect of the long finite prison sentence likely to be imposed meant Mr Dotcom was at risk of spending the rest of his natural life in prison.

In light of the circumstances of Mr Dotcom’s case — including the fact that the alleged offending, if proven, would amount to fraud “on a massive scale” — the Minister decided that surrendering Mr Dotcom would not shock the conscience of properly informed New Zealanders. Nor did the Minister consider that Mr Dotcom’s likely US sentence amounted to an irreducible life sentence, given the availability of executive clemency and compassionate release. Having addressed those matters in his surrender decision, the Minister issued a surrender order, the execution of which was deferred for four weeks to enable Mr Dotcom to take legal advice.

Mr Dotcom subsequently issued judicial review proceedings against the Commissioner’s decision declining to charge him in New Zealand and against the Minister’s surrender decision. Mr Dotcom sought declarations that the decisions were invalid, orders quashing the decisions, an order directing the Commissioner to charge Mr Dotcom in New Zealand and an order discharging Mr Dotcom.

In a judgment issued in 2025, Grice J in the High Court rejected all of Mr Dotcom’s grounds of review. Mr Dotcom appealed.

Did the High Court err in finding that the Commissioner’s charging decision was neither erroneous in law nor unreasonable? Held: No

The scope of review for decisions involving prosecutorial discretion is limited, but even if that were not so, the facts of this case made it clear there was a rational and proper basis for the Commissioner’s decision.

As noted in the Commissioner’s decision declining to charge Mr Dotcom, Mr Dotcom’s position differed from that of Mr Ortmann and Mr van der Kolk in fundamental respects. Not only was Mr Dotcom the ringleader in terms of role and financial gain, he was also not offering to plead guilty, meaning his proposal involved having a trial in New Zealand. A trial was not something the New Zealand police considered feasible given the vast volume of complex evidence and investigating agents and witnesses located in the US.

Most critically of all, however, the US was not prepared to withdraw its request for extradition of Mr Dotcom in the way it was for the others. If the New Zealand police were unilaterally to acquiesce to Mr Dotcom’s request, that would be inconsistent with the extradition treaty between the US and New Zealand and the Extradition Act — neither of which contemplate domestic prosecution as an alternative to an extant extradition proceeding — and would undermine the extradition objectives of international cooperation and comity.

The difficulties with Mr Dotcom’s argument could not be cured by his submissions that the Commissioner failed to comply with the Solicitor-General’s Prosecution Guidelines and breached NZBORA. Given the existence of an ongoing extradition proceeding, it was unnecessary for the Commissioner to consider the Prosecution Guidelines. Nor was s 9 of NZBORA engaged. While the Commissioner’s decision did, in one sense, place Mr Dotcom at risk of “punishment” in the US, any sentence imposed by the US was too remote from the Commissioner’s decision to engage s 9.

Did the High Court err by finding that the Minister’s surrender decision was not unreasonable and would not subject Mr Dotcom to disproportionately severe treatment or punishment under s 9 of the New Zealand Bill of Rights Act 1990? Held: No

The parties accepted that the application of s 9 of NZBORA in this case required the Minister to start by identifying the sentence likely to be imposed in the US. Mr Dotcom submitted that the Minister proceeded on a factually incorrect assumption in his risk assessment of the likely US sentence: the more likely sentence was, Mr Dotcom said, nearer to 150 years than 30 years. The Court, however, was not persuaded there was any error, factual or legal, in the Minister’s approach which, while adopting the likely 30-year prison term, did so on the basis it was an effective life sentence.

The parties also agreed that the Minister was correct to determine whether the likely sentence was “grossly disproportionate” for the purposes of s 9 of NZBORA by applying the shocked conscience test. Contrary to Mr Dotcom’s submission, the shocked conscience test did not require a comparison of the sentence Mr Dotcom was likely to receive in the US with the actual sentences imposed on Mr Ortmann and Mr van der Kolk in New Zealand. It was well established that the correct approach was to compare the sentence the person was likely to receive in the requested country with the likely sentence in the requesting country. 

While the Minister was entitled to use the sentences imposed on Mr Ortmann and Mr van der Kolk to inform an assessment of the likely New Zealand sentence as he did, that was the extent to which their sentences were relevant. It was therefore not a reviewable error for the Minister not to take into account the effect of the Commissioner’s decision declining to prosecute Mr Dotcom.

Further, and again contrary to Mr Dotcom’s submission, the shocked conscience test did not ask whether the likely sentence in the requesting country would shock the national conscience if imposed at home, but rather, whether it would shock the national conscience for a person to face such a sentence in another country after an extradition request and surrender. The High Court’s application of the shocked conscience test was therefore entirely consistent with the overseas extradition authorities in Canada, the United Kingdom and Europe.

Finally, while the question of an irreducible life sentence as an alternative pathway for establishing disproportionately severe treatment under NZBORA had not been addressed by New Zealand courts, there was no dispute in this case that it was available as a matter of law. The Court considered, however, that it was not available to Mr Dotcom on the facts. Mr Dotcom contended that having accepted that parole was not a feature of US federal law, the Minister erred by nevertheless going on to find a sentence of 30 years would not be an irreducible life sentence for the purposes of s 9 of NZBORA. He argued that neither compassionate release nor executive clemency was anything more than a theoretical possibility for him. 

The Court considered that what made a life sentence reducible and rights-consistent was the existence of a genuine review mechanism available at the time of sentencing, not the likelihood of it being applied for the benefit of the particular individual whose extradition was sought. The High Court was therefore correct to hold it was open to the Minister to find Mr Dotcom was not facing an irreducible life sentence.

The appeal is dismissed.

The appellant must pay each of the respondents costs for a standard appeal on a band A basis, together with usual disbursements. We certify for two counsel.

The appellant must pay one set of costs to the respondents in relation to an adjournment application on the basis of a standard application, band A with a 50 per cent increase.

Administrative law — judicial review — right to refuse to undergo medical treatment — whether actionable procedural obligation on public decision-maker to consider Bill of Rights issues when making decisions — mandatory relevant consideration — New Zealand Bill of Rights Act 1990, ss 5 and 11 — Health Act 1956, pt 5A

In 2022 the Director-General of Health acting under pt 5A of the Health Act 1956 issued letters to 14 local authorities directing them to fluoridate their drinking water supplies. Although the Director-General complied with and detailed his consideration of the mandatory criteria under the empowering provision of the Health Act, neither the Director-General’s letters nor the appendices annexed to them made any express reference to the Bill of Rights. The fluoridation directions, however engaged the right to refuse medical treatment under s 11 of the Bill of Rights.

In June 2023, New Health New Zealand Inc issued judicial review proceedings against the Director-General and the Attorney-General challenging the directions. The essence of New Health’s error of law argument was that the Bill of Rights created an actionable process obligation on all actors caught by s 3 to undertake a Bill of Rights assessment whenever protected rights were engaged, meaning the Director-General erred in failing to turn his mind to the right to refuse medical treatment and justify his decision under s 5 of the Bill of Rights.

Given its novelty, the error of law ground was isolated in the High Court and dealt with as the following question of law: “Is … there an obligation in a procedural sense on those to whom the [Bill of Rights] applies to consider the application of the [Bill of Rights] if their exercise of power might engage a protected right?”.

In November 2023, Radich J answered in the affirmative. The Judge confirmed the existence of such an actionable process obligation which he held was owed by all public decision-makers and which if breached would render their decision unlawful independently of whether the decision itself was rights-consistent. Although the Health Act did not explicitly mandate consideration of the Bill of Rights, a protected right was engaged, meaning the Director-General was required to turn his mind to whether the directions were in each case a reasonable limit on the right to refuse medical treatment and be satisfied that they were. Failure to treat the Bill of Rights as a mandatory relevant consideration rendered the Director-General’s decision to issue the directions unlawful and that was so regardless of whether it was in fact compliant with the Bill of Rights.

In a relief judgment issued in February 2024, the Judge ordered the Director-General to reconsider the decision while keeping the directions in place. In December 2024, the Director-General concluded that fluoridation of water was a substantively justified limit on the s 11 right and reconfirmed the directions.

Despite the appeal being moot with no practical effect on the dispute, the Crown appealed the November 2023 High Court decision given its legal significance. A Full Court heard the appeal.

Did the High Court err in ruling that the Director-General’s decision to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and consider whether that restriction was justified under s 5 of the New Zealand Bill of Rights Act 1990? Held: Yes

French P, Courtney, Katz and Thomas JJ: Having reviewed New Zealand Supreme Court authorities — and United Kingdom authorities affirmed by the Supreme Court — the better view was that the actionable process obligation adopted by the High Court was not part of New Zealand’s current law. Absent an express provision in the empowering legislation requiring a s 3 decision-maker to consider the Bill of Rights, the Bill of Rights was not generally a mandatory consideration. Substantive compliance with the Bill of Rights was the touchstone of illegality, rather than the process by which the administrative decision had been reached.

Although adopting the novel actionable process duty might heighten awareness of the Bill of Rights, any benefits that might result from recognising such a stand-alone duty were limited and far outweighed by well-founded concerns of practicality, undue formalism, doctrinal confusion and uncertainty.

The High Court therefore erred in finding that through a failure to expressly undertake a Bill of Rights assessment prior to issuing the directions under s 116E of the Health Act, the Director-General acted unlawfully.

Mallon J (dissenting): Mallon J agreed with the High Court that an actionable process obligation arose and would have dismissed the appeal. In her view, unless the empowering statute under which the discretionary public power was exercised clearly excluded it, the Bill of Rights gave rise to both a stand-alone procedural requirement and a substantive constraint on a public decision-maker.

The appeal against the High Court decision of 10 November 2023 is allowed.

The ruling that the first appellant’s decision to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and to consider whether that restriction was justified under s 5 of the New Zealand Bill of Rights Act 1990 is set aside.

We make no award of costs in relation to the appeal.

The costs award made by the High Court in favour of the respondent is set aside, and the costs paid to the respondent refunded.

Presumption of resulting trust. Presumption of advancement. Adult children. Transferor's intentions. 

The appeal is dismissed. The appellants must pay the respondents costs for a standard appeal on a band A basis together with usual disbursements. 

In 2012, Ms Liao purchased a residential property in Glen Innes, Auckland. Her parents, Mr and Mrs Liao (the appellants) contributed 10 per cent of the purchase price. Ms Liao said that the funds were advanced to her as a gift. Mr and Mrs Liao said, to the contrary, that the funds had been advanced on the basis that the property would belong to them. They bought proceedings alleging that Ms Liao held the property on resulting trust. 

Did the Judge err in treating the presumption of advancement as applying to adult children? Held: No. 

In New Zealand the presumption of advancement has continued to be recognised with respect to adult children. The Court considered the decision of the Canadian Supreme Court in Pecore v Pecore which held that the presumption of advancement no longer applied to adult children, being predicated on parental obligation to support children. Parents had no legal obligation to support their adult children, so adult children should not benefit from a presumption of advancement. However, the Court preferred the reasoning of Abella J, in dissent, to the reasoning of the majority in Pecore. The Court held that the presumption of advancement reflects the unique relationship between parent and child and the fact that the emotional ties underpinning that relationship endure regardless of age. While the parental relationship does involve moral and legal obligations, it is not reducible to them. The uniqueness of the relationship justifies a presumption that parents who advance money to their children can be assumed, absent contrary evidence, to have intended to gift them that money. 

On the facts, was the presumption of resulting trust displaced? Held: Yes

Woolford J in the High Court was satisfied that the presumption of advancement applied, such that the funds should be treated as a gift to Ms Liao. However, this Court was satisfied that the evidence was sufficient to rebut the presumption of resulting trust without recourse to the counter-presumption of advancement. Given the surrounding circumstances, it was inherently unlikely that Mr and Mrs Liao would have become interested in buying an investment property in New Zealand at the relevant time. Moreover, Ms Liao had contributed a significant amount of equity to the property and taken on a substantial mortgage liability. It was implausible that she would have done this with the sole purpose of improving her credit score (as submitted by the appellants). Some of the advanced funds had been borrowed from Ms Liao's brother (without Ms Liao's knowledge). The appellants subsequently asked Ms Liao to pay her brother back, which she did. There was no obvious reason for her to have done so if she had no interest in the property. Further, the Court was satisfied on the balance of probabilities that it was Ms Liao and her husband who met the shortfall between the rent and the mortgage, not the appellants. Again, there was no obvious reason Ms Liao would have met the shortfall without an interest in the property. The Court attached no significance to the fact that there were no contemporaneous documents describing the advance as a gift: there was no evidence before the Court that previous gifts made by the appellants had been documented. 

Criminal practice and procedure — extension of time — conviction appeal

On 26 March 2020 Mr Tarrant pleaded guilty to 51 charges of murder, 40 charges of attempted murder and one charge of engaging in a terrorist act.  He was convicted of those 92 offences immediately upon pleading guilty.  On 27 August 2020, Mr Tarrant was sentenced to life imprisonment without parole.  On 3 November 2022, Mr Tarrant filed a notice of appeal against his convictions and sentence.  His notice of appeal was filed 505 working days out of time.

The hearing in this Court was confined to Mr Tarrant's conviction appeal and his application to extend time to appeal those convictions.  After the hearing, Mr Tarrant filed a notice of abandonment, advising the Court that he no longer wished to pursue either his conviction or sentence appeal and the accompanying extension of time applications.

Issue one: should Mr Tarrant be permitted to abandon his applications for extensions of time and any resultant appeals?
Held: No, in part.  An appellant loses their absolute right to abandon their appeal once the hearing of the appeal has commenced.  Once this occurs, wider public interest considerations become relevant.  Mr Tarrant's application and conviction appeal are of significant public interest, and so we decline Mr Tarrant leave to abandon his application for an extension of time and any resultant conviction appeal.  Different considerations apply to Mr Tarrant's sentence appeal.  This was not addressed at the hearing, and so we accept Mr Tarrant's notice of abandonment to the extent it relates to his sentence appeal.

Issue two: should Mr Tarrant's application for an extension of time to bring an appeal against his convictions be granted?
Held: No.  This Court does not accept Mr Tarrant's evidence about his mental state.  There were inconsistencies in Mr Tarrant's own evidence, and his evidence is at odds with the detailed observations of prison authorities and the assessments of mental health professionals at the time of him entering his pleas.  His evidence is also at odds with the evidence of his two very experienced trial lawyers.  The only evidence in support of Mr Tarrant's case was given by Witness B, a clinical psychologist.  However, Witness B's opinions were significantly undermined both by the fact that the basis upon which he was asked to assess Mr Tarrant's state of mind was not borne out by the evidence, and by his responses to the Crown's questions in cross-examination.

Mr Tarrant's guilty pleas were voluntary.  He was not coerced or pressured in any way to plead guilty.  The evidence overwhelmingly demonstrates that he was not suffering any significant psychological impacts as a result of his prison conditions at the time he pleaded guilty.

Ultimately, Mr Tarrant's proposed conviction appeal is utterly devoid of merit.  Mr Tarrant has also failed to adequately explain the delay in filing his notice of appeal.  His own evidence was that his health started to improve well before November 2022, and prison records show that Mr Tarrant had almost unlimited access to lawyers.  While this Court accepts that Mr Tarrant was not able to find a lawyer who was willing to accept his instructions to file a notice of appeal, he was aware of the process of filing a notice of appeal and had no difficulty personally doing so in November 2022.  This Court does not accept his claims that he believed two other lawyers he had instructed were going to file a notice of appeal on his behalf.  The overall interests of society and the administration of justice also favour declining the application to extend time to appeal.