Olsen v The Queen - [2015] NZCA 2

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2015
[2015] NZCA 2

BETWEEN	KYUNG YUP KIM Appellant
AND	THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY Respondent

Hearing:	9 February 2015
Court:	Ellen France P, Randerson and White JJ
Counsel:	T Ellis, G K Edgeler and S Park for Appellant A M Powell and A F Todd for Respondent
Judgment:	25 February 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

Mr Kim appeals against the decision of Brewer J declining to issue the writ of habeas corpus.[1] Mr Kim is in custody pending determination by the Minister of Justice of a request from the People’s Republic of China that he be extradited to China to face a charge of intentional homicide. The appeal raises issues about the inter-relationship between ss 26 and 70 of the Extradition Act 1999 (the Act) dealing with detention pending determination of an extradition request.

Background

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

After the People’s Republic of China invoked New Zealand’s extradition process, Mr Kim was arrested in early June 2011. He has been in custody since then.[2]
[2]The appendix to this judgment, taken from the submissions for the respondent, summarises the chronology of events since arrest. Brewer J said the delays since that time reflected the fact that Mr Kim “does not want to be extradited to China and has challenged every step of the extradition process”: Kim v The Prison Manager, Mt Eden Corrections Facility [2014] NZHC 3051 at [1].
For present purposes, the next relevant event occurred on 29 November 2013 when, after a hearing, Judge Gibson found that Mr Kim was eligible for surrender. Mr Kim immediately said he intended to appeal that decision. Judge Gibson issued a warrant under s 70 of the Act for his detention pending the determination of his appeal. Mr Kim filed an appeal on 11 December 2013. On 12 September 2014 he filed a notice of abandonment of appeal. On 19 September 2014, Mr Kim discontinued judicial review proceedings. There is some question about the date by which all matters were abandoned but there is no dispute that by 29 September 2014 there were no longer any outstanding appeals.
On 26 November 2014, Mr Kim filed an application in the High Court for the surrender order to be discharged along with an application for habeas corpus. The application for habeas corpus proceeded to a hearing before Brewer J.
On 3 December 2014, Brewer J concluded the respondent had failed to establish that Mr Kim’s detention under s 70 of the Act was lawful. The Judge said, “at best, [the warrant] had expired.”[3] The Judge said he would have granted habeas corpus.[4] However, that day Brewer J had been shown a fresh warrant issued by Judge Gibson under s 26(1) of the Act. That subsection provides that if the Court determines under s 24 that…

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.

Continue reading Olsen v The Queen

Details

AGLC: Olsen v The Queen [2015] NZCA 2
Case: [2015] NZCA 2
Decision Date: 25 February 2015 at 2.30 pm

CaseChat Overview and Summary

Kyung Yup Kim appeals against the decision of Brewer J declining to issue the writ of habeas corpus. Mr Kim has been in custody since June 2011 pending determination by the Minister of Justice of a request from the People’s Republic of China that he be extradited to China to face a charge of intentional homicide. The appeal raises issues about the inter-relationship between ss 26 and 70 of the Extradition Act 1999 (the Act) dealing with detention pending determination of an extradition request. The Court of Appeal found that the detention was lawful and not on its face arbitrary. It was not necessary to consider whether there was a failure to meet the requirements of natural justice; whether the District Court Judge should have considered bail; or, finally, whether the District Court Judge should have considered detention other than in a prison. The appeal was dismissed.

Orders