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Kim v Minister of Justice of New Zealand [2019] NZCA 209

11 June 2019


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Minister of Justice's decision to surrender the appellant under s 30 of the Extradition Act is quashed.  The Minister must reconsider whether Mr Kim, as murder accused, is to be surrendered in accordance with the matters identified at [278] of the judgment.

Criminal practice and procedure — Extradition

In 2011, New Zealand received a request from the People’s Republic of China (the PRC) seeking the extradition of Mr Kim on one count of intentional homicide.  In response, the Minister of Justice sought and received various assurances from the PRC to meet concerns identified by Mr Kim and Ministry officials in connection to the risk of torture, extra-judicial killing and Mr Kim’s right to a fair trial under international law.  The Minister was satisfied that these assurances addressed the risks identified and determined that Mr Kim be surrendered under s 30 of the Extradition Act 1999.

Mr Kim successfully applied to judicially review that decision.  The Minister obtained further assurances in light of the High Court’s findings and reconsidered her decision, determining again that Mr Kim be surrendered to face trial in the PRC.  The Judge refused Mr Kim’s second application for judicial review.  Mr Kim appealed that decision to this Court.    

Issue One: Is reliance upon diplomatic assurances consistent with New Zealand’s international obligations?

Held: Yes.  New Zealand is not prohibited by international law from accepting or relying on diplomatic assurances when assessing whether there is a substantial risk a person will be tortured or otherwise subjected to breaches of human rights.  The Judge correctly held that before relying on assurances, the Minister must address the preliminary question of whether the general human rights situations in the requesting state was such that assurances could be relied upon, however erred in finding the Minister explicitly addressed this question.

Issue Two: Did the Minister take into account a consideration irrelevant to the surrender decision, namely helping the PRC establish credibility in the international community?

Held: No.  There was no evidence before the Court that the Minister intended to secure outcomes for the PRC through the extradition of Mr Kim; the evidence that the PRC would likely be motivated to honour assurances was relevant to the Minister’s assessment of whether the PRC would likely comply with undertakings.

Issue Three: Did the Minister err in accepting assurances in relation to torture as adequate to protect Mr Kim on return to the PRC?

Held: Yes.  While it was relevant for the Minister to ascertain whether Mr Kim was in a class of defendants at “high risk” of torture in the PRC, it was not reasonably open to the Minister to conclude on the evidence before her that Mr Kim, as a murder accused, was not at high risk.  In upholding this the Judge erred.  The Judge also erred in finding no error in the Minister’s conclusion that certain factors, such as location of trial, reduced Mr Kim’s risk of torture because there was a lack of evidence on this point.  Finally the Judge erred in failing to identify deficiencies in the Minister’s consideration of the adequacy of assurances given the information that torture remains widespread in the PRC and that torture is difficult to detect.

Issue Four: Did the Minister err in relying upon diplomatic assurances as an adequate protection against the imposition of the death penalty?

Held: No.  The Minister was entitled to take into account evidence of prior compliance of the PRC in this regard.  The Judge was correct to find no error in this regard.

Issue Five: Did the Minister fail to address the risk of extra-judicial killing?

Held: No.  Although the Court agreed with Mr Kim that the risk of extra-judicial killing must be addressed separately to the risk of torture, there was no evidence before the Court that Mr Kim was at risk of extra‑judicial killing beyond that considered under torture.

Issue Six: Did the Minister apply an incorrect legal standard when determining whether Mr Kim’s right to a fair trial would be upheld?

Held: Yes.  This Court has reservations as to the Othman (Abu Qatada) v United Kingdom test of “flagrant denial of justice”, as it involves such a departure from standards so as to amount to a nullification or destruction of fair trial rights guaranteed by international law.  Rather, a more appropriate threshold is whether there is a “real risk of a departure from the standard such as to deprive the defendant of a key benefit of the right in question”.  One a person establishes a “real risk”, it is for the requesting state to dispel any doubts.

Issue Seven:  Did the Minister err in concluding that there was no risk of departure from fair trial standards justifying refusal of surrender?

Yes.  The assurance that Mr Kim would be tried in accordance with domestic law did not meet the concern that he would not be tried before an independent tribunal, a right guaranteed under international law.  The evidence before the Judge, and Minister, was that PRC’s criminal justice system prioritises stability and crime control over procedural rights, and is subject to political influence.  There was insufficient evidence before the Minister in relation to disclosure, the status of the defence bar and the right to examine prosecution witnesses for the Minister to reasonably conclude there was no real risk to a departure from fair trial standards in Mr Kim’s case.

Issue Eight: Did the Minister err in making the decision to surrender Mr Kim notwithstanding the absence of assurance addressing the risk of disproportionate punishment?

Held: Yes.  As a matter of sentencing methodology and considering international legal obligations, it would be a disproportionately severe, or cruel and degrading, punishment should time served in custody in the arresting state not be deducted from the finite sentence of imprisonment in the PRC.  There was evidence before the Minister of PRC officials previously providing assurances to this effect.  Against this background, the Court considered the Judge erred in finding no reviewable error.

Issue Nine:  Did the Minister err in relying on advice from PRC officials as to Mr Kim’s access to mental health care in custody in the PRC?

Held: Not appropriate to consider on the basis of material before the Court.