Non corpus mentis
Well jolly good it appears at first glance. Unanimous support for audio visual links in courts says the Justice Minister.
But only a protection for the trial - not the pre-trial or anything that happens afterwards. By putting in only one exception they leave out the others. That is my objection to this law.
Habeas corpus hearing without the corpus?
Habeas corpus - the last extant bit of the Magna Carta in NZ - what about that protection? A judge can't make a determination on a prisoner without being there in person. Producing the prisoner in a monitor isn't going to cut it because they are still being held in communicado. That's Orwellian. It's Orwellian that it isn't mentioned.
Wikipedia: Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore in many countries the writ of habeas corpus itself may be suspend[ed] during a time of war or national emergency
in the US:] The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention
The passing of this bill also raises another dimension as to the extent of fairness and transparency in the judicial process. The NZ Herald reports last month:
Taxi killing accused faces China trial:
A Chinese kitchenhand accused of murdering an Auckland cabbie will be tried in his native country, but will not face the death penalty.
It is understood an agreement has been brokered between the New Zealand and Chinese Governments in which 23-year-old Zhen Xiao will stand trial for the killing of Hiren Mohini, but will not be subject to capital punishment, provided New Zealand police hand over their evidence.
Police located Xiao in Shanghai last week - more than four months after Mr Mohini, 39, was stabbed to death in Mt Eden's View Rd.
Inquiry head Detective Senior Sergeant Hywel Jones last night told the Weekend Herald, from China, the death penalty was typically taken off the table in cases stemming from other jurisdictions. "Basically what happens in a case like this is we go through diplomatic channels and request that the death penalty is waived and that's what's happened in the past and once they give assurances they don't go back on that."
Assurances? Either they'll let him off in a trial that will last barely a day (because he's the son of a PLA/communist official) or they'll find him guilty of murder and sentence him to a life in a gulag, which he will appeal and will be heard and dismissed, all of which will take 2-3 working days. Those are the two options here if a bullet in a stadium is off the cards.
Is he going to get a fair trial in China? Is the family of the deceased going to see justice on behalf of the victim? Is it going to work the other way around; are New Zealanders who flee back home able to have their cases about who they killed in China decided in NZ?
Surely this trial must take place in Auckland - where the alleged murder happened, where all the witnesses are and all the evidence is. We wouldn't have accepted - for example - a French tribunal sitting in France to conduct a trial of the Rainbow Warrior saboteurs so why would we let the Chinese carry out their own "trial" in China for a murder of an Auckland Taxi driver in Auckland? For all the faults of this bill the NZ Courts Dept could still run a better trial via Skype than the People's Republic of China can with everyone in the same room of a state court in Shanghai.
If the Crown now has the legal ability to put the defendant in China on trial in a NZ court - regardless of the fact he is in Chinese custody - will China co-operate to make it happen?