Minister of Justice v Kyung Yup Kim

JurisdictionNew Zealand
CourtSupreme Court
JudgeGlazebrook,Ellen France,Arnold JJ,Glazebrook J,O'Regan,French JJ,O'Regan J
Judgment Date04 June 2021
Neutral Citation[2021] NZSC 57
Docket NumberSC 57/2019

[2021] NZSC 57

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

Glazebrook, O'Regan, Ellen France, Arnold and French JJ

SC 57/2019

Between
Minister of Justice
First Appellant
Attorney-General
Second Appellant
and
Kyung Yup Kim
Respondent
Counsel:

U R Jagose QC, A F Todd and G M Taylor for Appellants

A J Ellis, B J R Keith and G K Edgeler for Respondent

A S Butler, R A Kirkness and C S A Harris for Human Rights Commission as Intervener

Criminal, International — appeal against a Court of Appeal order which upheld the decision made by the then Minister of Justice, (“the Minister”), that K should be surrendered to the People's Republic of China where he was charged with intentional homicide — assurances for fair trial requirements — International Covenant on Civil and Political Rights

The issue was whether it was reasonably open to the Minister to decide to surrender K to the PRC.

The Court unanimously held that it was not necessary to ask a preliminary question as to whether the general human rights situation in the receiving state excluded accepting diplomatic assurances whatsoever. There may be rare cases where the human rights situation was so bad that assurances could not properly be given any weight at all, no matter how detailed. The Court articulated a three-stage process for considering whether diplomatic assurances sufficiently remove the risk in a case. First, it was necessary to assess the danger to the individual, considered in light of the particular characteristics and situation of the individual and the general human rights situation in the country where they would be sent. Second, it was necessary to assess the quality of assurances given, and whether, if they were honoured, they would adequately mitigate the risk the individual would otherwise face. Third, a decision-maker must assess whether in light of the situation in the receiving state and any other relevant factors (such as the strength of the bilateral relationship between the receiving and sending states) the assurances could be relied upon. These three steps were intertwined.

The Court unanimously held that, if limited further diplomatic assurances had been obtained, the Minister could have reasonably concluded that there were not substantial grounds for believing that K would be in danger of being subjected to torture if extradited to the PRC.

The Court unanimously held that the test to be applied as to whether there was a real risk of a flagrant denial of justice in K's was whether the trial would fall below the minimum fair trial requirements contained in art 14 International Covenant on Civil and Political Rights (“ICCPR”). A trial was either fair or it was not, and a somewhat fair trial would not suffice. It did not accept that there should be a balancing of the right to a fair trial and the public interest in extradition, there could be no public interest in extradition to an unfair trial.

If limited further assurances had been obtained and certain further inquiries made, the Minister could have, depending on the results of the inquiries, reasonably concluded that K would not face a real risk of a flagrant denial of justice on extradition. The Minister should have received an assurance that the trial would take place in Shanghai. Other matters required further investigation and, depending on what the Minister had found, could have required further assurances. The majority recognised that there may also be relevant changes in the circumstances considered by the previous Minister.

By a majority the Court adjourned the appeal to give the Minister the opportunity to make the further inquiries and seek the further assurances identified.

JUDGMENT OF THE COURT
REASONS

Para No.

Glazebrook, Ellen France and Arnold JJ

[1]

O'Regan and French JJ

[478]

Glazebrook, Ellen France AND Arnold JJ

(Given by Glazebrook J)

Table of Contents

Para No.

Introduction

[1]

Procedural history

[3]

Further background

[10]

The allegations

[10]

Seeking assurances

[16]

First surrender decision

[19]

First judicial review decision

[23]

Second surrender decision

[28]

Second judicial review decision

[30]

Court of Appeal judgment

[31]

Issues

[38]

What is the standard of review?

[40]

Court of Appeal judgment

[40]

Appellants' submissions

[41]

Intervener's submissions

[42]

Mr Kim's submissions

[45]

Our assessment

[46]

Was the Minister obliged to make a preliminary assessment of the general human rights situation in the PRC before seeking assurances?

[52]

Court of Appeal judgment

[52]

Appellants' submissions

[54]

Mr Kim's submissions

[55]

Our assessment

[57]

Conclusion on preliminary question

[64]

In what circumstances is it possible to rely on assurances related to torture?

[66]

Ministerial briefings

[69]

Court of Appeal judgment

[72]

Issues raised about torture assurances by commentators

[75]

Caselaw on diplomatic assurances

[84]

New Zealand's statutory framework

[103]

The three questions

[108]

Does extradition to a country that practises torture breach UNCAT?

[109]

Can assurances be sought where, absent assurances, there would be substantial grounds for believing a person to be extradited would be in danger of being subjected to torture?

[112]

Can assurances be sought from a state where torture is systemic?

[122]

Conclusion

[127]

The assurances on torture in this case

[129]

Assessing the risk in this case

[131]

Relevant considerations in the three-stage test

[136]

Guidance on monitoring

[140]

Material before the Minister

[144]

Ministerial briefing of 23 November 2015

[144]

Criminal procedure

[145]

Torture in the PRC: legal position

[147]

General situation in the PRC relating to torture

[152]

Individual risk to Mr Kim

[158]

Assurances

[160]

Further Ministerial briefings and advice

[163]

Further information as to the situation regarding torture in the PRC and Mr Kim's personal risk

[164]

Further details about the assurances

[170]

Decisions and submissions

[180]

Minister's reasons of 3 October 2016

[180]

Court of Appeal judgment

[185]

Appellants' submissions

[193]

Mr Kim's submissions

[194]

Intervener's submissions

[195]

Issues arising with regard to the assurances

[197]

Risk to Mr Kim

[198]

Quality of assurances

[212]

First assurance

[213]

Second assurance

[218]

Third assurance

[221]

Fourth assurance

[224]

Fifth assurance

[229]

Importance of a robust monitoring regime

[230]

Timing of visits

[232]

Notice of visits

[236]

Continued monitoring

[237]

Private visits

[239]

Medical examinations

[243]

Sixth assurance

[247]

Seventh assurance

[249]

Tenth assurance

[251]

Twelfth assurance

[256]

Likelihood that the assurances will be honoured

[257]

Conclusion on risk of torture

[263]

Fair trial issues

[265]

What is the proper test for assessing whether there will be a fair trial?

[266]

Court of Appeal judgment

[266]

Appellants' submissions

[270]

Mr Kim's submissions

[272]

Intervener's submissions

[273]

Ministerial briefing of 23 November 2015

[275]

Our assessment

[277]

Background: fair trial issues

[288]

Assurances related to fair trial

[288]

Court of Appeal's concerns

[289]

Appellants' submissions

[291]

Mr Kim's submissions

[292]

Intervener's submissions

[293]

Discussion of main fair trial assurances received

[294]

Judicial independence

[300]

Court structure

[301]

Ministerial briefing of 23 November 2015

[305]

First surrender decision

[308]

Evidence for first judicial review

[309]

Second surrender decision

[312]

Court of Appeal judgment

[313]

Additional material on judicial committees

[316]

Referral criteria

[318]

Number of referrals

[322]

Process

[324]

Eligibility to attend

[327]

International standards

[329]

Issues

[334]

Role of the PRC courts

[335]

Political influence

[339]

Operation of judicial committees

[341]

Right to silence

[356]

Background: law and practice in the PRC

[356]

Court of Appeal judgment

[360]

Our assessment

[362]

Position of defence counsel

[368]

Background: law and practice in the PRC

[368]

Court of Appeal judgment

[376]

Our assessment

[379]

Disclosure

[384]

Background: law and practice in the PRC

[384]

Court of Appeal judgment

[391]

International standards

[394]

Our assessment

[402]

Examining witnesses

[408]

Background: law and practice in the PRC

[408]

Court of Appeal judgment

[411]

International standards

[413]

Our assessment

[418]

Conclusion on fair trial

[422]

Should the Minister have received an assurance with regard to remand time?

[424]

Court of Appeal judgment

[427]

Appellants' submissions

[429]

Mr Kim's submissions

[431]

Our assessment

[432]

Summary of our decision on appeal

[434]

Torture

[435]

Surrender where risk of torture

[435]

The test

[437]

Risk to Mr Kim

[439]

Quality of...

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