PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Facilitating appearance of witnesses

92.
Request for voluntary appearance of witness—

(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 64, or 93(1)(e) of the Statute in facilitating the voluntary appearance of a witness before the ICC.

(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that—

(a)the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and

(b)the witness's attendance is sought so that the witness can give evidence or information relating to the investigation or proceeding; and

(c)the witness is or may be in New Zealand.

(3)In this section and sections 93 and 94, ``witness'' includes a person who may give expert evidence; but does not include either—

(a)a person who has been accused of an international crime in the proceedings to which the request relates; or

(b)a prisoner who is detained in relation to an offence against New Zealand law.

Cf 1995 No 27 s 30(1); Statute, articles 19(8), 56, 64, 93(1)(e)

93.
Consent required and assurances may be sought—

(1)If the Attorney-General gives authority for the request to facilitate the voluntary appearance of a witness to proceed, the Attorney-General must forward the request to the appropriate New Zealand agency.

(2)The New Zealand agency to which a request is forwarded under subsection (1) must make such inquiries as may be necessary to ascertain if the prospective witness consents to giving evidence or assisting the ICC.

(3)The Attorney-General may, at any time, ask the ICC to give 1 or more of the following assurances:

(a)that the witness will not be prosecuted, detained, or subjected to any restriction of personal freedom by the ICC in respect of all or any specified acts or omissions that occurred before the person's departure from New Zealand:

(b)that the witness will be returned to New Zealand as soon as practicable in accordance with arrangements agreed to by the Attorney-General:

(c)an assurance relating to such other matters as the Attorney-General thinks appropriate.

Cf Statute, article 93(2)

94.
Attorney-General may facilitate appearance—

(1)The Attorney-General may assist in the making of arrangements to facilitate a witness's attendance before the ICC if the Attorney-General is satisfied that—

(a)the prospective witness has consented to giving the evidence or assistance requested; and

(b)the ICC has given adequate assurances where appropriate.

(2)The Attorney-General may—

(a)approve and arrange the travel of the witness to the ICC; and

(b)obtain such approvals, authorities, and permissions as are required for that purpose, including, in the case of a person who although not liable to be detained in a prison is subject to a sentence,—

(i)the variation, discharge, or suspension of the conditions of the person's release from prison; or

(ii)the variation, cancellation, or suspension of the person's sentence, or of the conditions of the person's sentence; and

(c)take such other action for the purposes of subsection (1) as the Attorney-General thinks appropriate.

Cf 1995 No 27 ss 30(2), 31(3)

Part 1
Request by a Tribunal for assistance

4 Tribunal may request assistance

(3) without limiting the generality of subsection (1), a Tribunal may make a request for assistance of any 1 or more of the following types :

(a) arresting and surrendering to the Tribunal a person in relation to whom the Tribunal has issued an arrest warrant :
(b) executing a request for search and seizure:
(c) obtaining evidence or a document or other article:
(d) providing a document or other record:
(e) locating and identifying a witness or suspect:
(f) arranging for a person to give evidence or assist an in-vestigation:
(g) causing the forfeiture of tainted property:
(h) serving documents:
(i) arranging for the Tribunal to sit in New Zealand.

Part 3
Other forms of assistance to a Tribunal

Giving evidence at hearings, or assisting in investigations, in foreign countries

30 Person other than offender giving evidence or assisting

(1) This section applies where—

(a) a Tribunal makes a request to the Attorney-General for the attendance of a person
(i) at a hearing in a foreign country in connection with a proceeding before the Tribunal ; or
(ii) in a foreign country to assist an investigation being conducted by the Tribunal ; and

(b) the person is in New Zealand and is not a person described in section 31(1 )(b).

(2) Where, on receipt of a request to which this section applies, the Attorney-General is satisfied—

(a) that the proceeding or investigation relates to a Tribunal offence ; and
(b) that there are reasonable grounds to believe that the person can give evidence relevant to the proceeding or as¬sist the investigation ; and
(c) that the person has freely consented to giving evidence or assisting in the foreign country ; and
(d) that the Tribunal has given, to the extent, if any, required by the Attorney-General, an adequate undertaking in respect of the matters specified in section 33,—

the Attorney-General may, subject to section 57, authorise, in writing, assistance to the Tribunal in accordance with this section and may assist in the making of arrangements to facilitate that attendance.

31 Offender giving evidence or assisting

(1) This section applies where—

(a) a Tribunal has made a request to the Attorney-General for the attendance of a person
(i) at a hearing in a foreign country in connection with a proceeding before the Tribunal ; or
(ii) in a foreign country to assist an investigation be¬ing conducted by the Tribunal ; and

(b) the person is in New Zealand and is —
(i) a prisoner ; or
(ii) on parole, home detention, or compassionate release, or is subject to release conditions, under Part 1 of the Parole Act 2002 ; or
(iii) subject to a sentence of home detention imposed under section 80A of the Sentencing Act 2002 ; or
(iv) at large pursuant to section 62 of the Corrections Act 2004 ; or
(v) subject to a community-based sentence (within the meaning of section 4(1) of the Sentencing Act 2002).

(2) Where, on receipt of a request to which subsection (1) applies, the Attorney-General is satisfied—

(a) that the proceeding or investigation relates to a Tribunal offence ; and
(b) that there are reasonable grounds to believe that the person can give evidence relevant to the proceeding or assist the investigation ; and
(c) that the person has freely consented to giving evidence or assisting in the foreign country ; and
(d) that the Tribunal has given, to the extent, if any, required by the Attorney-General, adequate undertakings in respect of the matters referred to in section 33,—

the Attorney-General may, subject to section 57, authorise the travel of the person to a foreign country in accordance with this section.

(3) Where travel by a person to a foreign country is authorised in accordance with subsection (2), the Attorney-General may,—

(a) in the case of a person who is a prisoner, direct that the prisoner be released from the prison in which that per-son is detained for the purpose of travelling to the foreign country to give evidence at the hearing, and may make arrangements for the prisoner to travel to the for-eign country in the custody of a constable or a prison officer:
(b) in the case of any other person to which this section applies, approve and arrange the travel of the person to the foreign country to give evidence at the hearing, and may obtain such approvals, authorities, and permissions as are required for the purpose, including the variation, discharge, or suspension of the conditions of the person's release, or the variation, cancellation, or suspension of the person's sentence, or of the conditions of the person's sentence.

(4) A direction given, pursuant to subsection (3)(a), by the Attorney-General in respect of a prisoner shall be sufficient authority for the release of the prisoner from the prison in which he or she is detained for the purposes of the direction.

(5) Every person released under a direction given pursuant to sub-section (3)(a) shall, while that person is in New Zealand dur¬ing the period of that release, be deemed, for the purposes of section 120 of the Crimes Act 1961 (which relates to escaping from lawful custody) and for that purpose only, to continue to be in legal custody for the time being under the Corrections Act 2004.

32 Effect of removal to foreign country on prisoner's sentence

Where a prisoner who is serving a sentence for an offence against the law of New Zealand is released from a New Zealand prison pursuant to a request by a Tribunal under section 31, the prisoner shall, while in custody in connection with the request (including custody outside New Zealand), be deemed to be continuing to serve that sentence.

33 Undertakings relating to persons giving evidence or assisting

(1) Where a Tribunal makes a request to the Attorney-General for the attendance of a person to whom section 31 applies or a person to whom section 30 applies to give evidence or assist, the Attorney-General shall seek from the Tribunal an undertaking—

(a) that the person will only be required to give evidence or assistance in relation to the Tribunal offence specified in the request ; and
(b) that any evidence given by the person will not be used in any proceeding other than the proceeding to which the Tribunal offence relates ; and
(c) that the person will be returned to New Zealand as soon as practicable in accordance with arrangements agreed to by the Attorney-General.

(2) In a case where the request relates to a person who is a pris-oner, and the Attorney-General requests the Tribunal to make arrangements for the keeping of the prisoner in custody while the prisoner is in the foreign country, the Tribunal shall also give, to the extent, if any, required by the Attorney-General, the following undertakings :

(a) that appropriate arrangements will be made for that purpose:
(b) that the prisoner will not be released from custody in the foreign country without the prior approval of the Attorney-General:
(c) that if the prisoner is released in accordance with paragraph (b), the prisoner's accommodation and expenses will be paid for by the Tribunal until the Tribunal decides that the person is no longer required to give evidence in the proceeding, or to assist the investigation, to which the request relates.