Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 


Kim v The Prison Manager, Mount Eden Corrections Facility

[Full judgment: SC_80_2012__Kim_v_Prison_Manager_Mt_Eden.pdf]

Supreme Court of New Zealand

20 December 2012

MEDIA RELEASE – FOR IMMEDIATE PUBLICATION

KYUNG YUP KIM v THE PRISON MANAGER, MOUNT EDEN CORRECTIONS FACILITY (SC 80/2012)

[2012] NZSC 121

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

Kyung Yup Kim, a citizen of the Republic of Korea and a permanent resident of New Zealand, is presently detained in Mt Eden Prison. An ex parte application for a provisional arrest warrant in respect of Mr Kim was made on behalf of the People’s Republic of China, and issued by Judge Broadmore in June 2011. The Minister of Justice decided to allow the statutory extradition process to be invoked on 15 August 2011.

Mr Kim has been offered fixture dates for the Court’s hearing under the Extradition Act that will determine whether he is eligible for surrender in relation to a murder he allegedly committed in Shanghai. He has successfully applied on each occasion for adjournment of the fixture so the hearing has not taken place.

On 12 September 2012, following a change of counsel, Mr Kim applied to the High Court for a writ of habeas corpus, claiming that he was being unlawfully detained. The High Court held that the arguments advanced on behalf of Mr Kim were not suitable for summary determination in a habeas corpus application. The Court of Appeal upheld this decision, and Mr Kim now appeals to this Court.

Mr Kim’s counsel argued that the Judge did not have reasonable grounds to be satisfied he was an extraditable person under the Extradition Act because: first, China had not shown that it had complied with provisions of its own extradition law in requesting surrender of Mr Kim, and secondly, Mr Kim was merely suspected of committing the murder, and had not in fact been “accused” of the offence. Counsel, in an argument which differed from his submissions in the lower Courts, submitted that these challenges were capable of fair summary determination on a habeas corpus application and did not seek to question the current approach to habeas corpus applications taken by the New Zealand Court of Appeal.

The Supreme Court has unanimously dismissed the appeal. Three of the five Judges of the Court (the Chief Justice, McGrath and Glazebrook JJ) agreed with Mr Kim that the arguments were capable of determination on a habeas corpus application. The arguments themselves turned on the information before the Judge at the time the warrant was issued, and New Zealand law. The international context of the Extradition Act made it clear that the meaning of an “accused” person necessarily accommodates the procedural differences in the approach to prosecution of crime in different national jurisdictions. Therefore, in deciding whether a person who was to be the subject of extradition proceedings was an “accused” person, rather than focussing on whether formal charges had been laid, the particular facts of each case must be assessed. In the present case, on the information before the Judge, Mr Kim was plainly an accused person.

The Supreme Court also decided that it was not necessary to establish compliance with extradition law in China before a provisional warrant was issued. The provisional warrant process is preliminary and able to be used before any request for surrender has been made. Whether or not Chinese law was complied with is accordingly irrelevant to the issue of a provisional warrant. Other arguments relating to the possibility of torture or imposition of the death penalty, if Mr Kim is surrendered, were premature. They are mandatory and discretionary considerations at a later stage in the process under the Extradition Act. The Chinese government has also said that it will not impose the death penalty in Mr Kim’s case.

Chambers J’s separate concurring judgment would have dismissed the appeal for the reasons set out by the Courts below, and William Young J agreed that the approach taken by those Courts was open to them.

The appeal is accordingly dismissed.


[Full judgment: SC_80_2012__Kim_v_Prison_Manager_Mt_Eden.pdf]

© Scoop Media

 
 
 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

 

PARLIAMENT TODAY:

  • Second Readings To Continue
  • House Rises Interrupting RNZ Bill
  • Standards Bill Progresses
  • Controversy Over Non-Controversial Bill
  • Questions and Answers – May 19
  • Parliament Today 19-05-15
  • Environmental Reporting Bill Progresses
  • Access Week in Parliament 19-05-15

  • TPPA: University Of Auckland Warns Of Negative TPP Impact

    The University of Auckland May 20, 2015 University of Auckland Warns of Negative TPP Impact With the Trans Pacific Partnership (TPP) negotiation drawing to a close, the University of Auckland has expressed serious concerns about its potential implications. ... More>>

    NZ Flag: Flag Referendum Gets Hit Hard In New Poll

    The latest Campbell Live text poll confirms it is time for the Prime Minister to listen to the public and shelve his flag referendum, says the New Zealand First Leader Rt Hon Winston Peters. More>>

    Gordon Campbell: The Government’s Belated Moves On Property Speculation

    Is it a property tax on capital gains or a capital gains tax on property? The Jesuitical distinctions in the government’s spin about its latest moves on property speculators are all about whether the government can claim that it jumped, or confess that it ... More>>

    Grant Robertson:
    Key Can’t Just Be Prime Minister For Parnell

    John Key must show New Zealanders in next week’s Budget that he is more than the Prime Minister for Parnell, and is also the Prime Minister for Pine Hill, Putararu and Palmerston North, Labour’s Finance spokesperson Grant Robertson says. In a ... More>>

    Labour Party: More Regional Jobs Go In Corrections Reshape

    News that 194 Corrections staff are to lose their jobs will have ramifications not only for them and their families but for the wider community, Labour’s Corrections spokesperson Kelvin Davis says. Prison units at Waikeria, Tongariro and Rimutaka ... More>>

    ALSO:

  • NZ First - Prison Job Losses to Send Money Offshore
  • TPPA: ‘Team Obama’ Regroups On Fast Track, Still Not Deliverable

    ‘After yesterday’s stinging and unexpected defeat for the Obama administration’s attempt to advance Fast Track legislation in the US Senate, Senate leaders have worked up a compromise they think will get them past this blockage’, according to Auckland ... More>>

    NZ Government: 5,500 More Doctors And Nurses In Our Hospitals

    Health Minister Jonathan Coleman says a record number of doctors and nurses are working in District Health Boards across the country. More>>

    Controller and Auditor General: Katherine Rich Conflict of Interest Decision

    We are writing to you about a matter that has been raised with us by members of the public. More>>

    ALSO:


    Budget 2015: Andrew Little On The 2015 Budget

    Speaking to the Chamber of Commerce, the Labour opposition leader attacked the government’s approach to economic issues facing New Zealand. He said they have been “more than reckless in their complacency” and “the next week’s budget will do nothing ... More>>

    Defence Force: NZDF Building Partner Capacity Mission Personnel In Iraq

    NZDF Building Partner Capacity Mission Personnel in Iraq The New Zealand Defence Force Building Partner Capacity training mission contingent is in place at Taji Military Complex in Iraq. The Chief of Defence Force Lieutenant General Tim Keating says the ... More>>

    PM Press Conference: ACC Levy Cuts Announced

    In a press conference this afternoon in Wellington, ACC Minister Nikki Kaye proposed $500 million worth of ACC levy cuts. More>>

    Quakes: New Process For Red Zone Crown Offers

    Canterbury Earthquake Recovery Minister Gerry Brownlee has announced a process to give everyone a say on the Crown offers to owners of vacant, commercial/industrial and uninsured properties in the Residential Red Zone. More>>

    ALSO:

    Gordon Campbell: On The Battle Obama Is Waging Over The TPP

    For the past two and a half years, this column has been arguing that the fate of the Trans Pacific Partnership (TPP) deal will hinge on whether US President Barack Obama can win Trade Promotion Authority (TPA) from Congress... Last week, the White House finally, finally unveiled a draft TPA Bill. More>>

    ALSO:


    Gordon Campbell: On lessons for Labour from the UK election
    If the polls were right – and the pollsters kept telling us how accurate they’d been in 2010, and even Nate Silver was getting the same results – there seemed no way that the British Labour Party could lose last Thursday’s British election. With Labour predicted to win around 270 seats and the Scottish National Party batting around 55-60 seats, Labour seemed to be home free. But…as we now know, things didn’t turn out that way. Labour ended up with 232 seats and the Conservatives swept back to power with an outright majority, after winning only a little more than a third ( 36.9%) of the votes cast.MORE >>
    Also.

  • NZ PM John Key - PM congratulates David Cameron after UK election
  • The Nation IV Transcript - Hack Attack author Nick Davies
  • Get More From Scoop

     

    LATEST HEADLINES

     
     
     
     
     
     
     
     
     
    Politics
    Search Scoop  
     
     
    Powered by Vodafone
    NZ independent news