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

Taking evidence and producing documents

86.
ICC may give evidence certificate—

(1)In this section, ``evidence certificate'' means a certificate or declaration that—

(a)is given or made by or on behalf of the ICC; and

(b)specifies or declares whether, under the Statute or the Rules, a specified person or class of persons could or could not be required to answer a specified question or to produce a specified document—

(i)generally; or

(ii)in specified proceedings; or

(iii)in specified circumstances.

(2)An evidence certificate authenticated under subsection (3) is admissible in proceedings for the purposes of the application of section 85(4) as prima facie evidence of the matters stated in the certificate.

(3)A certificate is authenticated for the purposes of subsection (2) if it purports to be—

(a)signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of the ICC; or

(b)authenticated in any other manner authorised by the Statute or the Rules.

Cf 1995 No 27 s 27

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

Questioning persons

89.
Assistance in questioning persons—

(1)This section applies if the ICC requests assistance under any of articles 19(8), 56, 64, or 93(1)(c) of the Statute in questioning a person who is being investigated or prosecuted.

(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 person is or may be in New Zealand.

(3)If the Attorney-General gives authority to proceed,—

(a)the Attorney-General must forward the request to the appropriate New Zealand agency; and

(b)that agency must, without delay,—

(i)use its best endeavours to undertake the questioning that the ICC has requested; and

(ii)ensure that the answers to the questions put are recorded in writing and make any other report on the questioning as it considers to be appropriate in the circumstances; and

(iii)advise the Attorney-General of the outcome of those endeavours and, if relevant, deliver the record and any report of the questioning to the Attorney-General.

Cf Statute; articles 19(8), 56, 64, 93(1)(c)

90.
Procedure where questioning by New Zealand agency—

(1)This section applies if there are grounds to believe that a person who is to be questioned by a New Zealand agency following a request under article 91(1)(c) of the Statute has committed a crime within the jurisdiction of the ICC.

(2)If this section applies, the person to be questioned must be informed, before being questioned, that there are grounds to believe that the person has committed a crime within the jurisdiction of the ICC and that the person has the right—

(a)to remain silent, without such silence being a consideration in the determination of guilt or innocence; and

(b)to have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to the person, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and

(c)to be questioned in the presence of a lawyer unless the person voluntarily waives the right to counsel.

(3)If there is any inconsistency between subsection (2) and any other enactment, subsection (2) prevails.

(4) If the person seeks to have legal assistance assigned under sub-section (2)(b), that assistance may be provided under the Legal Services Act 2000.

(5)This section does not give any person a power to require another person to answer questions.

Cf Statute, article 55(2)

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

Taking evidence, etc

21 Attorney-General may authorise taking of evidence

(1) This section applies where a Tribunal makes a request to the Attorney-General

(a) for evidence to be taken in New Zealand ; or
(b) for documents or other articles in New Zealand to be produced—

for the purposes of a proceeding before, or an investigation conducted by, the Tribunal.

(2) Subject to section 57, where the Attorney-General is satisfied—

(a) that the request relates to a Tribunal offence ; and
(b) that there are reasonable grounds for believing that the evidence can be taken or, as the case may be, the documents or other articles can be produced in New Zealand,—

the Attorney-General may authorise, in writing, assistance in accordance with section 22 and section 23.

22 Taking of evidence

(1) Where the Attorney-General authorises the taking of evidence under section 21, the evidence shall be taken on oath from each witness by a Judge.

(2) The Judge who takes evidence in accordance with subsection (1), shall—

(a) cause the evidence to be put in writing ; and
(b) certify that the evidence was taken by the Judge ; and
(c) cause the writing so certified to be sent to the Attorney-General.

23 Producing documents or other articles

(1) Where the Attorney-General authorises the production of documents or other articles, that production shall be required by the order of a Judge.

(2) Subject to subsection (3), if the documents or other articles are produced, the Judge shall send them to the Attorney-General together with a written statement certifying that they were pro-duced to the Judge.

(3) In the case of documents, the Judge may send to the Attorney-General copies of the documents certified by the Judge to be true copies.

24 Legal representation

The Judge conducting a proceeding under section 22 or section 23, or both, may permit—

(a) the person to whom the proceeding before, or investi¬gation conducted by, the Tribunal relates ; and
(b) any other person giving evidence or producing docu-ments or other articles at the proceeding before the Judge ; and
(c) the Tribunal—

to have legal representation at the proceeding before the Judge.

25 Form of certificate

A certificate by a Judge under section 22(2) or section 23(2)shall state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present :

(a) the person to whom the proceeding before, or the in-vestigation conducted by, the Tribunal relates, or that person's legal representative (if any) :
(b) any other person giving evidence or producing documents or other articles, or that person's legal representative (if any).

26 Compellability of persons to attend

(1) Subject to subsections (2) and (3), the law of New Zealand with respect to compelling persons—

(a) to attend before a Judge ; and
(b) to give evidence, answer questions, and produce documents or other articles—
on the hearing of a charge against a person for an offence against the law of New Zealand shall apply, with necessary modifications, with respect to compelling persons for the purposes of sections 22 and 23.

(2) For the purposes of sections 22 and 23, the person to whom the proceeding before, or the investigation conducted by, the Tribunal relates, is competent but not compellable to give evidence.

(3) No person who is required, pursuant to section 22 or section 23, to give evidence, or to produce documents or other articles for the purposes of a proceeding before, or investigation conducted by, a Tribunal shall be required to give any evidence, or to produce any document or article, that the person could not be compelled to give or produce in the proceedings before, or investigation conducted by, the Tribunal.

(4) A person who is required, pursuant to section 22 or section 23, to give evidence or produce documents or other articles for the purposes of a proceeding before, or investigation conducted by, the Tribunal shall have the same privileges in relation to the answering of questions and the production of documents or articles as if the proceedings were pending in a New Zealand court or the investigation were being conducted in New Zealand, as the case may be.

27 Tribunal immunity certificates

(1) In this section, Tribunal immunity certificate means a cer-tificate or declaration that—

(a) is given or made by a Tribunal under the Statute of the Tribunal or under the rules adopted under the Statute of the Tribunal ; and

(b) specifies or declares that, under the Statute of the Tribunal or under the rules adopted under the Statute of the Tribunal, persons generally or a specified person could or could not
(i)either generally or in specified proceedings ; and
(ii) either generally or in specified circumstances —

be required to answer a specified question or to produce a specified document.

(2) A Tribunal immunity certificate, duly authenticated in accord¬ance with subsection (3), is admissible in proceedings for the purposes of the application of section 26(3) as prima facie evidence of the matters stated in the certificate.

(3) A certificate is duly authenticated for the purposes of subsection (2) if it purports to be signed or certified by a Judge, Registrar, or officer of the Tribunal.

28 Powers of Judge may be exercised by Registrar

(1) Any Judge may authorise a Registrar of the High Court to exercise the powers of a Judge under section 22 or section 23 in respect of any particular case.

(2) Any authorisation given under subsection (1) may be revoked at any time by any Judge.

(3) Where any matter in respect of which a Registrar has jurisdiction under any authorisation given under subsection (1) appears to the Registrar to be one of special difficulty, he or she may refer the matter to a Judge, who may dispose of the mat¬ter or may refer it back to the Registrar with such directions as the Judge thinks fit.

(4) Nothing in this section shall prevent the exercise, by any Judge, of any jurisdiction or powers conferred on any Registrar under this section.

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.