Kim v The Prison Manager, Mt Eden Corrections Facility - [2014] NZHC 3152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3174 [2014] NZHC 3152

UNDER the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

KYUNG YUP KIM Applicant

AND

THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY Respondent

Hearing: 4 December 2014

Counsel:

T Ellis and S Park for Applicant
NMH Whittington and A Todd for Respondent

Judgment:

10 December 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 December 2014 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Carole Curtis (Auckland) for Applicant
Meredith Connell (Auckland) for Respondent

Counsel: Dr Tony Ellis

KIM v THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY [2014] NZHC 3152 [10 December
2014]

Introduction

[1] On 28 November 2014, I heard an application by Mr Kim for a writ of habeas corpus. He was detained in a prison pursuant to a warrant issued in the District Court under s 70 of the Extradition Act 1999 (“the Act”) and his argument was that the warrant had expired. I reserved my decision.

[2] On 2 December 2014, the District Court issued a new warrant for Mr Kim’s detention, this time pursuant to s 26(1) of the Act. The next day I delivered my judgment.1 I said I would have granted Mr Kim’s application, but the matter was now moot because of the new warrant. I awarded Mr Kim his costs.

[3] Mr Ellis, for Mr Kim, at once filed a further application for a writ of habeas corpus. I heard argument on 4 December 2014. Essentially, Mr Ellis submits that the District Court issued the new warrant unlawfully because it failed to follow due process.

The process

[4] Mr Kim’s first application for a writ of habeas corpus was filed on one basis but argued on another. That was because, the day before the hearing, Mr Ellis saw a copy of the warrant pursuant to which Mr Kim was detained and noted that, on its face, it had expired. He handed up submissions to that effect. Crown counsel then had to extemporise an argument that the warrant was still operative.

[5] Subsequently, Crown counsel concluded that the first warrant should never have been issued. On 2 December 2014, Crown counsel sent a memorandum to Judge Gibson, who had issued the warrant. A copy of the memorandum was served on Mr Ellis and another was provided to me. The point of the memorandum was to advise Judge Gibson that, in the Crown’s view, he had been wrong to detain Mr Kim pursuant to a warrant issued under s 70 of the Act.

[6] Judge Gibson had the task of determining, pursuant to s 24 of the Act, whether Mr Kim is eligible for surrender in relation to the offence for which

surrender is sought. In this case, the People’s Republic of China wishes to extradite Mr Kim to face a charge of intentional homicide. Judge Gibson decided that Mr Kim is eligible…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 3152
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Kyung Yup Kim applied for a writ of habeas corpus, arguing that his detention under a warrant issued by the District Court was unlawful. The court was required to determine whether Kim's detention was lawful and whether the process leading to the issuance of the warrant adhered to due process. The issues before the court included whether the District Court judge was functus officio, whether Kim was denied due process, and whether the validity of the warrant was more suited for judicial review rather than habeas corpus. The court found that the District Court judge was not functus officio as the jurisdiction to issue a warrant under section 26(1) of the Extradition Act 1999 had not been exercised. The court also held that Kim was not denied due process because the issuance of the warrant was a mandatory statutory duty and not a matter for judicial decision. Additionally, the court concluded that the validity of the warrant was not better left for judicial review, as the warrant was issued pursuant to a statutory power and was valid on its face. Therefore, the application for a writ of habeas corpus was denied, and Kim's detention was deemed lawful.

Orders