PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE

Co-operation relating to offences against administration of justice

23.
Co-operation relating to offences against administration of justice—

(1)If the ICC makes a request for assistance in an investigation or proceeding involving an offence against the administration of justice, that request must be dealt with,—

(a)in the case of a request for surrender, in the manner provided in Parts 3 and 4, and those Parts apply accordingly and with the necessary modifications, subject to any contrary provision in the Statute or the Rules; and

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

28.
Consultation—

(1)The Attorney-General or the Minister, as the case may be, must consult with the ICC, without delay, if—

(c)in the case of a request for surrender,—

(i)the person sought cannot be located in New Zealand; or

(ii)it appears that the person in New Zealand is clearly not the person named in the warrant or judgment, as the case may be; or

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

Official capacity of suspect or accused no bar to request

31.
Official capacity of person no bar to request—

(1)The existence of any immunity or special procedural rule attaching to the official capacity of any person is not a ground for—

(b)holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Eligibility for surrender

43.
Determination of eligibility for surrender—

(1)If a person is brought before a District Court under this Part, the District Court must determine whether the person is eligible for surrender in relation to the international crime or crimes for which surrender is sought.

(2)Subsection (1) applies subject to sections 38 and 45.

(3)The person is eligible for surrender if—

(a)a warrant for the arrest of the person issued by the ICC or a judgment of conviction for an international crime given by the ICC has been produced to the District Court; and

(b)the District Court is satisfied that the person is the person to whom the warrant or judgment relates; and

(c)the District Court is satisfied that the person was arrested in accordance with the proper process as provided in article 59(2)(b) of the Statute; and

(d)the District Court is satisfied that the person's rights were respected as provided in article 59(2)(c) of the Statute.

(4)Neither subsection (3)(c) nor subsection (3)(d) applies unless the person puts the matter at issue.

(5)Despite subsection (3), the person is not eligible for surrender if the person satisfies the District Court that a mandatory restriction on the surrender of the person specified in section 55(1) applies.

(6)Despite subsection (3), in the proceedings under this section,—

(a)the person to whom the proceedings relate is not entitled to adduce, and the District Court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which the surrender is sought; and

(b)in the case of a person accused of an offence, nothing in this section requires evidence to be produced or given at the hearing to establish, according to the law of New Zealand, that the trial of the person would be justified if the conduct constituting the offence had occurred within the jurisdiction of New Zealand.

Cf 1999 No 55 s 45; Statute, article 59(2)

44.
Adjournment of hearing—

(1)The District Court may adjourn the hearing for such period as it considers reasonable to allow a deficiency or deficiencies to be remedied if—

(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings are produced; and

(b)the District Court considers the deficiency or deficiencies to be of a minor nature.

(2)Subsection (1) does not limit the circumstances in which the District Court may adjourn a hearing.

45.
Surrender by consent—

(1)A person may at any time notify the District Court that he or she consents to being surrendered to the ICC for the international crime or crimes for which surrender is sought.

(2)The District Court may accept the notification of consent under subsection (1) if—

(a)the person is before the District Court when notification of the consent to surrender is given; and

(b)the person has been legally represented in the proceedings; and

(c)the District Court is satisfied that the person has freely consented to the surrender in full knowledge of its consequences.

(3)Nothing in this section prevents a person, in respect of whom a determination of eligibility for surrender is made by the District Court under section 43, from subsequently notifying the Minister that the person consents to surrender.

(4)To avoid doubt,—

(a)a person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which case the Minister may make a surrender order as if a request for surrender had been received; and

(b)if paragraph (a) applies, section 38(1)(a) does not apply.

Cf 1999 No 55 s 28; Statute, article 92(3)

46.
Procedure following determination on eligibility or consent to surrender—

(1)This section applies if—

(a)the District Court has determined in accordance with section 43 that a person is eligible for surrender; or

(b)a person has consented to surrender to the ICC in accordance with section 45.

(2)If this section applies, the District Court must—

(a)issue a warrant for the detention of the person in a prison or other place authorised in accordance with section 42 of this Act or section [171(2)] of the Summary Proceedings Act 1957 pending the surrender of the person to the ICC or the person's discharge according to law; and

(b)send to the Minister a copy of the warrant of detention and such report on the case as the court thinks fit; and

(c)inform a person to whom subsection (1)(a) applies that,—

(i)subject to section 70, the person will not be surrendered until the expiration of 15 days after the date of the issue of the warrant; and

(ii)during that time the person has the right to make an application for a writ of habeas corpus; and

(iii)the person has the right to lodge an appeal under section 67; and

(d)inform a person to whom subsection (1) applies that the Minister must determine whether to issue a surrender order before the person can be surrendered to the ICC; and

(e)inform the person that if a surrender order is made and the person is not removed within 2 months, the person may apply to be discharged under section 74.

(3)If the District Court issues a warrant under subsection (2), the District Court may grant bail to the person in accordance with section 39.

(4)If the District Court is not satisfied that the person is eligible for surrender, it must discharge the person, unless under section 69 it orders that the person continue to be detained or issues a warrant for the arrest and detention of the person, pending the determination of an appeal under section 67.

Cf 1999 No 55 s 46


Surrender and temporary surrender

47.
Minister must determine whether person to be surrendered—

(1)If the District Court issues a warrant for the detention of a person under section 46, the Minister must determine whether to order that the person be surrendered.

(2)The Minister must make a surrender order in respect of the person unless—

(a)the Minister is satisfied that surrender of the person must be refused because a mandatory restriction on surrender specified in section 55(1) applies; or

(b)the Minister is satisfied that 1 of the discretionary restrictions on surrender specified in section 55(2) applies and that it is appropriate in the circumstances that surrender be refused; or

(c)the Minister postpones the execution of a request for surrender in accordance with section 56; or

(d)the Minister makes a temporary surrender order under section 49.

(3)The Minister must not make a surrender order in respect of a person until the later of the following times:

(a)until the expiration of 15 days after the date of the issue of the warrant of detention of that person under section 46(2)(a); or

(b)if an appeal, or an application for review or habeas corpus in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, until after the date that the proceedings are finally determined and the result is that the person is eligible to be surrendered.

(4)Nothing in subsection (3) applies to—

(a)a person who has consented to surrender under section 45, whether before the District Court or subsequently by notice to the Minister; or

(b)a person to whom section 43 applies but who has, in accordance with section 70, notified the Minister that he or she has waived—

(i)the right to make an application for a writ of habeas corpus within 15 days after the date of the issue of the warrant; and

(ii)the right, in relation to every international crime for which the District Court has determined that the person is eligible to be surrendered, to lodge an appeal under section 67; or

(c)a person whom the District Court determines is eligible for surrender for 2 or more international crimes and who, under section 70, has waived—

(i)the right to make an application for habeas corpus within 15 days after the date of the issue of the warrant; and

(ii)the right, in relation to only 1 or some of those international crimes, to lodge an appeal under section 67,—

if the ICC withdraws its request for the surrender of the person for the international crime or crimes to which the waiver does not relate.

(5)If the Minister makes a surrender order in respect of a person described in section 4(2), the Minister may arrange for any approvals, authorities, and permissions that may be needed to be obtained before surrender, including the variation, cancellation, or suspension of the sentence, or of any conditions of the sentence.

(6)Subject to section 48, once the Minister has made a surrender order, the Minister must use his or her best endeavours to ensure that the person is delivered up to the ICC without delay in accordance with this Act and any applicable Rules.

Cf 1999 No 55 s 50; Statute, article 59(1) and (7)

48.
Surrender order may take effect at later date—

(1)This section applies if the Minister has determined under section 47 that in all other respects it is appropriate to make a surrender order, but the person is liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of New Zealand.

(2)If this section applies, the Minister may, after consultation with the ICC, instead of making a surrender order that has immediate effect, or a temporary surrender order under section 49, make an order for the surrender of the person that is to come into effect when the person ceases to be liable to be detained.

Cf 1999 No 55 s 32; Statute, article 89(4)

49.
Temporary surrender to ICC—

(1)This section applies if—

(a)the request by the ICC for surrender relates to an international crime of which the person is accused; and

(b)the Minister has determined under section 47 that in all other respects it is appropriate to make a surrender order but the person sought is either—

(i)the subject of proceedings for a different offence against New Zealand law that has not been finally disposed of; or

(ii)liable to be detained in a prison because of a sentence of imprisonment imposed for a different offence against the law of New Zealand; and

(c)after consultation by the Minister with the ICC, the ICC requests that the person be surrendered temporarily.

(2)If this section applies, the Minister may make a temporary surrender order in respect of the person.

(3)Before making a temporary surrender order, the Minister may seek undertakings from the ICC relating to 1 or more of the following matters:

(a)the return of the person to New Zealand:

(b)the custody of the person while travelling to and from and while in the ICC's jurisdiction:

(c)such other matters, if any, that the Minister thinks appropriate.

Cf 1999 No 55 s 33(1) and (2); Statute, article 89(4)

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

55.
Refusal of surrender—

(1)The Minister must refuse a request by the ICC for the surrender of a person if—

(a)there have been previous proceedings against the person and section 57(4) applies; or

(b)the ICC determines that the case is inadmissible and section 59(3) or section 60(2) applies; or

(c)section 66(3) applies.

(2)The Minister may refuse a request by the ICC for the surrender of a person if—

(a)there are competing requests from the ICC and a State that is not a party to the Statute relating to the same conduct and section 63(4) applies; or

(b)there are competing requests from the ICC and a State that is not a party to the Statute relating to different conduct and section 64(3) applies.

(3)To avoid doubt,—

(a)the only grounds on which surrender to the ICC may be refused are those specified in this section and, if applicable, section 23(2) (which relates to offences involving the administration of justice); and

(b)the restrictions on surrender specified in the Extradition Act 1999 do not apply in relation to a request for surrender from the ICC.

56.
Postponement of execution of request for surrender—

(1)The Minister may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if,—

(a)a ruling on admissibility of the kind specified in section 57(1) or section 59(1) or section 60 is pending before the ICC; or

(b)the request would interfere with an investigation or prosecution for a different offence against New Zealand law, as provided in section 58; or

(c)a request of the kind referred to in section 66(1)(c) is made to the ICC.

(2)Even if a case is one to which subsection (1) applies, the Minister may decide not to postpone the execution of the request; and, in that event, the Minister may take such steps under this Part as may be appropriate in the circumstances, including making a surrender order with immediate effect under section 47 or with effect at a later date under section 48 or a temporary surrender order under section 49.

(3)If the Minister postpones the execution of the request, the postponement may be for a reasonable time and may, if the Minister considers it desirable, be extended from time to time.

(4)A decision by the Minister to postpone the execution of a request—

(a)does not limit or affect—

(i)the District Court's ability to accept notification of consent to the surrender:

(ii)the ability to continue to detain a person under any warrant issued under this Part:

(b)does not affect the validity of any act that has been done or any warrant or order made under this Part before the decision was made.

(5)If no decision on the execution of the request for surrender is made within 6 months after the date of the Minister's decision to postpone the execution of the request, the person may apply to a Judge of the High Court to be discharged.

(6)If an application to be discharged is made under subsection (5), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—

(a)discharge any order made under this Act:

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

57.
Previous proceedings against person sought—

(1)This section applies if the person whose surrender is sought alleges that—

(a)the case is one to which article 20(1) of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or

(b)the person has been tried by another court for conduct also proscribed under article 6, 7, or 8 of the Statute and the case is not one to which paragraphs (a) and (b) of article 20(3) of the Statute applies.

(2)If this section applies, the Minister must immediately consult with the ICC to determine if there has been a relevant ruling on admissibility under the Statute.

(3)If the ICC has ruled that the case is admissible, surrender cannot be refused on the ground there have been previous proceedings.

(4)If the ICC has ruled that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground that there have been previous proceedings.

(5)If an admissibility ruling is pending, the Minister may postpone the execution of a request until the ICC has made a determination on admissibility.

Cf Statute, articles 20(1) and (3), 89(2)

58.
Ongoing New Zealand investigation or proceedings involving different conduct—

(1)This section applies if the ICC makes a request for surrender that would interfere with an investigation or proceedings in New Zealand involving different conduct.

(2)If this section applies, the Minister may, after consultation with the ICC,—

(a)proceed with the execution of the request in accordance with section 56(2), despite the New Zealand investigation or proceedings; or

(b)postpone the execution of the request until the New Zealand investigation or proceedings have been finally disposed of.

(3)Nothing in this section limits or affects section 48 which allows the Minister to make a surrender order that comes into force at a later date if a person is serving a sentence for a different offence against New Zealand law.

Cf Statute, article 94

59.
Person being prosecuted in New Zealand for same conduct—

(1)This section applies if—

(a)the ICC makes a request for surrender; and

(b)the request relates to conduct that would constitute an offence under New Zealand law; and

(c)either—

(i)the conduct is being investigated or prosecuted in New Zealand; or

(ii)the conduct had been investigated in New Zealand and a decision was made not to prosecute the person sought, that decision not being due to the unwillingness or genuine inability to prosecute; and

(d)a challenge to the admissibility of the case is being or has been made to the ICC under article 19(2)(b) of the Statute.

(2)If this section applies, the Minister may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.

(3)If the ICC determines that the case is inadmissible, surrender must be refused.

(4)If the ICC determines that the case is admissible and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

Cf Statute, articles 17(1), 19(2)(b), 95

60.
Other challenges to admissibility—

(1)If the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute, other than a challenge of the kind referred to in section 57 or section 59, the Minister may postpone the execution of a request under this Part pending a determination by the ICC.

(2)If the ICC determines that the case is inadmissible, surrender must be refused.

(3)If the ICC determines that the case is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

Cf Statute, article 95

61.
Request from ICC and other State relating to same conduct—

If a request for surrender of a person is received from the ICC and 1 or more States also request the extradition of the person for the same conduct that forms the basis of the crime for which the ICC seeks the person's surrender, the Minister—

(a)must notify the ICC and the requesting State of that fact:

(b)must determine, in accordance with section 62 or section 63, but despite section 99 of the Extradition Act 1999, whether the person is to be surrendered to the ICC or to the requesting State.

Cf Statute, article 90(1)

62.
Procedure where competing request from State Party—

(1)If section 61 applies and the requesting State is a party to the Statute, priority must be given to the request from the ICC if—

(a)the ICC has, under article 18 or article 19 of the Statute, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b)the ICC makes such a determination after receiving notification of the competing request.

(2)If the request is one to which subsection (1)(b) relates, then, pending the ICC's determination,—

(a)the steps required to be taken under the Extradition Act 1999 in relation to a request for extradition may continue to be taken; but

(b)No person may be surrendered under that Act unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.

Cf Statute, article 90(2)

63.
Procedure where competing request from non-State Party—

(1)If section 61 applies and the requesting State is not a party to the Statute, priority must be given to the request for surrender from the ICC if—

(a)New Zealand is not under an international obligation to extradite the person to the requesting State; and

(b)the ICC has determined under article 18 or article 19 of the Statute that the case is admissible.

(2)If section 61 applies and the requesting State is not a party to the Statute, the request for extradition may continue to be dealt with if—

(a)New Zealand is not under an international obligation to extradite the person to the requesting State; and

(b)the ICC has not yet determined under article 18 and article 19 of the Statute that the case is admissible.

(3)Despite subsection (2), no person may be surrendered under the Extradition Act 1999 unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.

(4)If section 61 applies, the requesting State is not a party to the Statute, and New Zealand is under an international obligation to extradite the person to the requesting State, the Minister must determine whether to surrender the person to the ICC or extradite the person to the requesting State.

(5)Section 99(1) of the Extradition Act 1999 does not apply to a determination made under subsection (4).

(6)In making the determination under subsection (4), the Minister must consider all the relevant factors including, without limitation,—

(a)the respective dates of the requests; and

(b)the interests of the requesting State, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c)the possibility of subsequent surrender between the ICC and the requesting State.

Cf Statute, article 90(4)-(6)

64.
Request from ICC and other State relating to different conduct—

(1)If a request for surrender of a person is received from the ICC and a request for the extradition of that person is received from 1 or more States for conduct other than that which constitutes the crime for which the ICC seeks the person's surrender, the Minister must determine whether the person is to be surrendered to the ICC or to the requesting State.

(2)If New Zealand is not under an existing international obligation to extradite the person to the requesting State, priority must be given to the request from the ICC.

(3)If New Zealand is under an existing international obligation to extradite the person to the requesting State, the Minister must determine whether to surrender the person to the ICC or to extradite the person to the requesting State.

(4)In making the determination under subsection (3), the Minister must consider all the relevant factors, including, without limitation, those matters specified in section 63 of this Act and section 99 of the Extradition Act 1999, but must give special consideration to the relative seriousness of the offences for which surrender is sought.

Cf Statute, article 90(7)

65.
Notification of decision on extradition to requesting State—

(1)If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Minister subsequently refuses extradition of the person to the requesting State under the Extradition Act 1999, the Minister must notify the ICC of this decision.

(2)The obligation in this section is in addition to the requirement in section 30 for the Minister to respond formally to the request from the ICC.

Cf Statute, article 90(8)

66.
Conflict with obligations to another State—

(1)This section applies if—

(a)the ICC makes a request for surrender; and

(b)the ICC has not previously made a final determination on whether or not article 98 of the Statute applies to that request; and

(c)a request is made to the ICC to determine whether or not article 98 of the Statute applies to the request for surrender.

(2)If this section applies, the Minister may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.

(3)If the ICC advises that it does not intend to proceed with the request, surrender must be refused.

(4)If the ICC advises that it intends to proceed with the request for surrender, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

Cf Statute, article 98


Appeals against determinations of eligibility for surrender

67.
Appeal on question of law only by way of case stated—

(1)This section applies if a District Court determines under section 43 that a person is or is not eligible for surrender in relation to any crime for which surrender is sought, and either party considers the determination erroneous in point of law.

(2)If this section applies, the party may appeal against the determination to the High Court by way of case stated for the opinion of the High Court on a question of law only.

(3)To lodge an appeal the party must, within 15 days after the determination, file in the office of the court that made the determination a notice of appeal in the prescribed form.

Cf 1999 No 55 s 68

68.
Application to appeal of certain provisions of Summary Proceedings Act 1957 [and Bail Act 2000]—

(1)The following provisions of the Summary Proceedings Act 1957 apply with any necessary modifications to an appeal under this Part as if it were an appeal under Part 4 of that Act against the determination by a District Court of an information or complaint:

(a)section 107(3) to (8) (appeal on question of law only by way of case stated):

(b)section 108 (no appeal on ground of improper admission or rejection of evidence):

(c)section 109 (District Court Judge or Justice may refuse a case if appeal frivolous):

(d)section 110 (certiorari not to be required when appeal upon case stated):

(e)section 111 (case may be sent back for amendment):

(f)section 113 (appeal on point of law may be removed into Court of Appeal):

(g)section 123 (powers of Judge of High Court as to extension of time):

(h)Repealed.

(i)section 129 (abandonment of appeal):

(j)section 130 (presentation of case by party in custody):

(k)section 131 (power of High Court to direct rehearing of information or complaint):

(l)section 133 (dismissal of appeal for non-prosecution):

(m)section 134 (registrar to certify decision on appeal):

(n)section 136 (custody of person after determination of appeal):

(o)section 143 (no Court fees payable on appeal by person sentenced to detention):

(p)section 144 (appeal to Court of Appeal).

(2)Section 47 of the Bail Act 2000 (which relates to the surrender of an appellant released on bail) applies with any necessary modifications to an appeal under this Part as if it were an appeal under Part 4 of the Summary Proceedings Act 1957 against the determination by a District Court of an information or complaint.

Cf 1999 No 55 s 69

69.
Custody pending determination of appeal—

(1)A District Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—

(a)the District Court makes a determination under section 43; and

(b)immediately after the District Court makes the determination, either party informs the District Court that the party intends to appeal against the determination.

(2)Any District Court or the High Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal if—

(a)a District Court makes a determination under section 43; and

(b)either party files a notice of appeal against the determination.

(3)If a person is detained under an order made under this section or is arrested and detained under a warrant issued under this section, sections 39 to 42 apply to the detention of the person with any necessary modifications as if the appeal proceedings were proceedings under section 43 to determine whether or not the person is eligible for surrender.

Cf 1999 No 55 s 70

70.
Waiver of rights to apply for habeas corpus or to lodge appeal—

Without limiting section 45, a person whose surrender is sought may, by a waiver in the prescribed form, waive the following rights:

(a)the right to make an application for a writ of habeas corpus within 15 days after the issue of a warrant of detention; and

(b)the right, in relation to any international crime or crimes for which the District Court has determined that the person is eligible for surrender, to lodge an appeal under this Part.

Cf 1999 No 55 s 71

71.
Powers of court on appeal—

(1)The High Court must hear and determine the question or questions of law arising on any case transmitted to it, and do 1 or more of the following things:

(a)reverse, confirm, or amend the determination in respect of which the case has been stated:

(b)remit the determination to the District Court for reconsideration together with the opinion of the High Court on the determination:

(c)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard:

(d)make any other order in relation to the determination that it thinks fit.

(2)In hearing and determining the question or questions of law arising on any case transmitted to it, the High Court—

(a)must not have regard to any evidence of a fact or opinion that was not before the District Court when it made the determination appealed against; and

(b)may in the same proceeding hear and determine any application for a writ of habeas corpus made in respect of the detention of the person whose surrender is sought.

Cf 1999 No 55 s 72

72.
Further provisions relating to powers of court on appeal—

(1)If the appeal is against a determination that a person is eligible for surrender, and the High Court reverses the determination in respect of which the case has been stated, the High Court must also either—

(a)discharge the person; or

(b)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard.

(2)If the appeal is against a determination that a person is eligible for surrender in respect of 2 or more international crimes, and the High Court determines that the determination includes an error of law that relates to only 1 or some of those international crimes, the High Court may amend the determination and—

(a)discharge the person in respect of that international crime or those international crimes; or

(b)remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard in respect of that international crime or those international crimes.

(3)Despite subsections (1) and (2), if an appeal is against a determination that a person is eligible for surrender, and the High Court determines that there has been an error of law, it may nevertheless decline to reverse or amend the determination in respect of which the case has been stated if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld.

(4)If the appeal is against a determination that a person is not eligible for surrender, and the High Court determines that the determination includes an error of law, the High Court may—

(a)exercise the powers of a District Court under section 46 as if it were a District Court, although subsection (2)(c) of that section does not apply:

(b)if it remits the determination to the District Court, issue a warrant for the arrest and detention of the person pending the District Court's reconsideration of the determination or rehearing of the proceedings to determine whether the person is eligible for surrender; and section 69(3) applies to any warrant issued under this paragraph as if the warrant were issued under that section.

(5)Subsections (1), (2), and (4) do not limit section 71.

Cf 1999 No 55 s 73


Discharge of person

73.
Discharge of person if Minister declines to order surrender—

If the Minister determines under section 47 that the person is not to be surrendered, the person must be discharged from custody immediately unless the person is subject to any other order for detention.

Cf 1999 No 55 s 35

74.
Discharge of person if not surrendered within 2 months—

(1)This section applies if a person is not surrendered and conveyed out of New Zealand under a surrender order or a temporary surrender order made under this Part within 2 months—

(a)after the date of the issue of the warrant for the detention of the person under section 46 pending surrender, if no appeal or application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending; or

(b)if an appeal, or an application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, after the date that the proceedings are finally determined; or

(c)if a surrender order is made under section 48, after the date that the order takes effect.

(2)If this section applies, the person may apply to a Judge of the High Court to be discharged.

(3)If an application to be discharged is made under subsection (2), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—

(a)discharge the surrender order or temporary surrender order, as the case may be; and

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

Cf 1999 No 55 s 36

75.
Discharge of person if not resurrendered—

(1)If a person has been surrendered under a temporary surrender order made under section 49, nothing in section 74 prevents an order being made under section 51.

(2)Subsection (3) applies if an order is made under section 51 and the person is not surrendered and conveyed out of New Zealand under this Part within 2 months after the date that the person ceases to be liable to be detained under the sentence of imprisonment imposed by a New Zealand court.

(3)If this subsection applies, the person may apply to a Judge of the High Court to be discharged.

(4)If an application to be discharged is made under subsection (3), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—

(a)discharge the surrender order; and

(b)order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

Cf 1999 No 55 s 37

76.
Discharge of person under this Part does not preclude further proceedings—

To avoid doubt, the discharge of a person under any provision of this Part does not preclude further proceedings under this Act, whether or not they are based on the same conduct, to surrender the person to the ICC.

Cf 1999 No 55 s 38; Statute, article 92(4)

PART 7 - PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Person in transit

136.
Transit by person being surrendered or transferred to ICC—

(1)This section and sections 137, 138, and 150 to 156 apply to a person (the ``transferee'') who—

(a)is being surrendered to the ICC by another State under article 89 of the Statute; or

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 2
Arrest and surrender of person to a Tribunal

Arrest of persons

6 Notice by Attorney-General
(1) Where—

(a) the Attorney-General receives from a Tribunal a request for the surrender of a person ; and
(b) the request is accompanied by an arrest warrant in relation to the person that was issued by the Tribunal, or by a copy of that warrant authenticated by the Tribunal,—

the Attorney-General shall, by notice in writing, directed to any Judge, state that the request has been received.

(2) Where any notice is sent to a Judge under subsection (1), a copy of—

(a) the arrest warrant referred to in subsection (1)(b) ; and
(b) the request made under section 4—

shall also be sent to the Judge.

7 Issue of warrants
(1) The Judge to whom a notice is sent under section 6 shall, without undue delay, issue a warrant in the prescribed form for the arrest of the person named in the notice if the Judge is of the opinion, having regard to the documents forwarded under section 6 and to any other evidence that is available to the Judge, that the person named in the warrant is or may be in or travelling to New Zealand.

(2) When the Judge has considered whether or not to issue a warrant in accordance with this section, the Judge shall send to the Attorney-General written notice of his or her decision.

8 Cancellation of warrant
(1) Where the Attorney-General is satisfied that there are special circumstances that make it unjust or otherwise inappropriate for a warrant issued under section 7 to continue in force, the Attorney-General shall, by notice in writing, order the cancel-lation of the warrant.

(2) Where the Attorney-General orders the cancellation of a war¬rant under subsection (1) the warrant shall cease to have effect and any person arrested under the warrant shall be released, unless the person is otherwise liable to be detained in custody.

9 Remand
(1) A person who is arrested under a warrant issued under section 7 shall, unless the warrant ceases to have effect under section 8, be brought before a Judge as soon as is practicable.

(2) Subject to subsection (3), the Judge shall remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney-General to make a surrender determination under section 12.

Where any person is remanded in custody or on bail under this section, the provisions of sections 167 to 169 of the Criminal Procedure Act 2011 and sections 28, 30 to 32, 34 and 35, and 37 to 39 of the Bail Act 2000 shall apply as if the person had been arrested for an offence punishable by imprisonment and with any other necessary modifications.

10 Release from remand at direction of Attorney-General
(1) Where a person has been remanded under section 9 and the Attorney-General is satisfied that there are special circumstances

(1) that make it unjust or otherwise inappropriate for the remand to continue, the Attorney-General shall, by notice in writing, order the release from custody of the person or the discharge of the conditions on which bail was granted to the person, as the case may be.

(2) Where the Attorney-General makes an order under subsection (1) in relation to a person who has been remanded in custody, a copy of the notice shall be sent to the prison manager of the prison in which the person is detained, and upon receipt of the notice the person in custody shall be released unless the person is otherwise liable to be detained in custody.

(3) Where the Attorney-General makes an order under subsection (1) in relation to a person who has been remanded on bail, a copy of the notice shall be sent to the Registrar of the court at which the person was released on bail.

11 Application for search warrant
Where—

(a) a person is arrested under a warrant issued under section 7 ; and
(b) a constable who is of or above the level of position of in-spector has reasonable
grounds for believing that there is in or on any place or thing any thing that is relevant to the Tribunal offence in respect of which the warrant was issued,—

the constable may apply to an issuing officer for the issue of a search warrant in accordance with section 48.


Surrender of persons

12 Surrender determination by Attorney-General
(1) Subject to subsection (2), the Attorney-General shall determine whether a person remanded under sections 6 to 11 is to be surrendered to the Tribunal.

(2) Unless the Attorney-General is satisfied that there are special circumstances that would make it unjust or otherwise inappropriate to surrender the person, the Attorney-General shall determine that the person is to be surrendered to the Tribunal.

(3) The determination shall be made as soon as is reasonably practicable, having regard to the circumstances, after the person is first remanded under section 9.

(4) Notwithstanding subsection (3), every determination required to be made under this section shall be made within 6 months of the date on which the person was first remanded under section 9.

13 Release from remand on refusal to surrender person
(1) Where the Attorney-General has determined not to surrender the person to the Tribunal, the Attorney-General shall, by no¬tice in writing, order, as the case may require,—

(a) the release of the person from custody ; or
(b) the discharge of the recognisances on which bail was granted to the person.

(2) Where the Attorney-General makes an order under subsection (1) in relation to a person who has been remanded in cus-tody, a copy of the notice shall be sent to the prison manager of the prison in which the person is detained, and upon receipt of the notice the person in custody shall be released unless the person is otherwise liable to be detained in custody.

(3) Where the Attorney-General makes an order under subsection (1) in relation to a person who has been remanded on bail, a copy of the notice shall be sent to the Registrar of the court at which the person was released on bail.

14 Surrender warrant
(1) Subject to section 15, where the Attorney-General determines that the person is to be surrendered to the Tribunal, the Attorney-General shall issue a warrant for the surrender of the person to the Tribunal.

(2) The surrender warrant shall be in writing in the prescribed form.

15 Persons imprisoned under New Zealand law
(1) The Attorney-General shall not issue a surrender warrant if

(a) the person is serving a sentence of imprisonment in re-spect of an offence against the law of New Zealand ; and

(b) the Tribunal has been required to give adequate under-takings to the Attorney-General relating to
(i) the person's return to New Zealand to serve the remainder of the sentence once the person is no longer required to be detained by, or on the order of, the Tribunal ; and
(ii) the person's custody while travelling, and while in other countries, for the Tribunal's purposes ; and

(c) the Attorney-General is not satisfied that the Tribunal has given adequate undertakings relating to those matters.

(2) For the purposes of this section, the person is not taken to be serving a sentence of imprisonment if he or she has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence.

16 Detention following surrender warrant
(1) Where the Attorney-General issues a surrender warrant under section 14, the person shall, if he or she is in custody, be brought as soon as is practicable before a Judge.

(2) Where the Attorney-General issues a surrender warrant under section 14 and the person has been remanded on bail, any constable may arrest that person without warrant, and the person shall be brought as soon as is practicable before a Judge.

(3) The Judge shall order the committal of the person to a prison to remain there until he or she is surrendered or released ac¬cording to law.

17 Content of surrender warrant
(1) A surrender warrant in relation to a person (in this section re-ferred to as the "eligible person") shall—

(a) require the person in whose custody the eligible person is being held to release the eligible person into the custody of a constable ; and

(b) authorise the constable to transport the eligible person in custody, and, if necessary or convenient, to detain the eligible person in custody, for the purpose of enabling the eligible person
(i) to be placed in the custody of a specified person who is an officer of the Tribunal or other person authorised by the Tribunal ; and
(ii) to be transported to a place specified by the Tribunal ; and

(c) authorise the specified person to transport the eligible person in custody to a place specified by the Tribunal for the purpose of surrendering the eligible person to a person appointed by the Tribunal to receive the person.

(2) A place referred to in subsection (1 )(b) or (c) may be a place in or outside New Zealand.

18 Release from remand
(1) This section applies to a person

(a) in relation to whom a surrender warrant has been issued ; and
(b) who is in custody in New Zealand under the warrant, or otherwise under this Act, more than 2 months after the day on which the warrant was first liable to be executed.

(2) Subject to subsection (3), the High Court shall order that a person to whom this section applies be released from that custody if—

(a) the person has made an application to the High Court to be released ; and
(b) reasonable notice of the intention to apply to the High Court was given by the person to the Attorney-General.

(3) The High Court shall not order that the person be released from custody if it is satisfied that the surrender warrant has not been executed within the period of 2 months, or since the person last made an application under subsection (2), as the case may be,—

(a) because to do so would have been dangerous to the per¬son's life or prejudicial to the person's health ; or
(b) for any other reasonable cause.

19 Effect of surrender on prisoner's sentence

(1) ubject to subsection (2), where a person who is serving a sentence in respect of an offence against the law of New Zealand is surrendered to a Tribunal under this Part, the person shall, while he or she is in the custody of, or on the order of, the Tribunal (including custody outside New Zealand), be eemed to be continuing to serve that sentence.

(2) If the person is convicted of a Tribunal offence, time spent by the person in custody serving a sentence of imprisonment imposed by the Tribunal for the Tribunal offence is not to be counted as time towards the sentence referred to in subsection (1).

20 Expiry of New Zealand sentences while under Tribunal detention
If—

(a) at the time a person was surrendered to a Tribunal under this Part, the person was serving a sentence of imprisonment in respect of an offence against the law of New Zealand ; and
(b) the sentence of imprisonment that the person was serving at that time expires while the person is being detained by, or on the order of, the Tribunal,—

the Attorney-General must without delay inform the Tribunal of the expiry, and, if the Tribunal was required to give undertakings in accordance with section 15(1)(b), that the undertakings are no longer required to be complied with.