China's assurances of a fair trial are not reliable, the lawyer for a man accused of murder has argued in the first case of extradition to China dealt with by a New Zealand justice minister.
Wellington High Court Photo: RNZ / Aaron Smale
Korean national Kyung Yup Kim has been accused of murdering a woman in Shanghai in 2009 and China is seeking to extradite him from New Zealand to face trial.
China originally sought Mr Kim's extradition in 2011 - the first time a Chinese request for extradition has been dealt with by a New Zealand Justice Minister.
In the second judicial review over the extradition, at the High Court in Wellington yesterday, Mr Kim's lawyer Tony Ellis said recent comments by China's Chief Justice Zhou Qiang showed his client would not be guaranteed a fair trial.
He said Mr Zhou had argued that judicial independence was a western concept which did not apply in China.
"You can't have a fair trial while that's continuing in China," Dr Elllis said.
He said there was no guarantee the witness statements taken in China had not been obtained under duress and it was unlikely they could be tested in a Chinese court.
He also doubted New Zealand officials in China would be capable of monitoring whether or not Mr Kim had been tortured.
Dr Ellis said that, given Red Cross were prohibited from entering Chinese jails, the suggestion New Zealand officials were capable of doing so with no experience amounted to a "second-rate system of assessment".
Crown prosector Austin Powell told the court there would, however, be immediate consequences if China were to breach an assurance - something it had never done before.
"It would be very difficult for China to extradite anyone from anywhere ever again," he said.
He said it was not enough for Mr Ellis to talk about general risks of torture, those risks had to be specific to the case at hand.
Mr Powell said Dr Ellis' submissions about gross human rights violations in China - including claims of organ harvesting, torture and people routinely disappearing - were not helpful because they did not relate to the case.
Mr Kim was being held in Mount Eden Prison from 2011, but was released on electronic bail in September.
Justice Minister Amy Adams made the original order to extradite in 2015, but in July last year that was overturned by the High Court.
Justice Mallon ruled the assurrances the minister had sought from Chinese authorities that Mr Kim would be properly treated, were inadequate.
She said Mr Kim might not have access to a lawyer during pre trial interrogation, and New Zealand could not be sure he would not be mistreated.
Ms Adams again ruled in September that Mr Kim should be extradited.
Timeline
- 10 June 2011 - Mr Kim arrested
- 29 November 2013 - District Court determines Mr Kim legally eligible for surrender
- 30 November 2015 - Minister of Justice Amy Adams makes first decision to extradite
- 1 July 2016 - High Court orders Minister to make decision again
- 19 September 2016 - Ms Adams makes second decision to extradite
- 22 September 2016 - Mr Kim granted electronic bail
- Today, 3 April 2017 - Judicial review of Minister's second decision heard
In her latest decision, Ms Adams said she was satisfied by China's assurances Mr Kim would not be subjected to torture and the case would be actively monitored.
"The People's Republic of China (PRC) has provided detailed and specific assurances about matters relating to your trial. As for torture, I am satisfied that the assurances given by the PRC can be relied on in this instance.
"The assurances will be proactively monitored. I consider there are effective mechanisms to ensure compliance and deal with breaches. NZ and other countries have experiences where assurances given by the PRC have been honoured."
She also noted that on the face of it, the case against Mr Kim appeared quite strong and included scientific evidence that had been reviewed in New Zealand.
She was satisfied that if he was found guilty, China would not impose the death penalty, she said.
The Crown's case continues today.