Chapter 3
Criminal proceedings

Guiding principles

Fair trial rights

3.4The purpose of a criminal trial is to allow evidence to be properly tested. In an adversarial legal system, evidence is tested by the defence counsel, who will advance arguments on behalf of the accused. This requires the defence to have access to relevant information obtained by the prosecution, including information that harms the prosecution case, both before proceedings commence and during the trial where evidence is presented.95 There is also public interest in full disclosure of relevant information in criminal proceedings, as this is a core component of open justice, discussed above in Chapter 2.96

3.5The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) both stipulate that in the determination of a criminal charge, everyone is entitled to a fair and public hearing by an independent and impartial tribunal.

3.6The ICCPR also sets out minimum guarantees relating to criminal trials. Persons accused of a crime must be informed of the charges against them, must have adequate time and facilities for the preparation of a defence and the ability to communicate with a counsel of their choosing, are entitled to defend themselves in person or through legal assistance of their choosing, and are entitled to examine witnesses.97

3.7In addition to New Zealand’s own commitment to the values of fair criminal processes through the common law, these international human rights instruments strongly influenced the development of NZBORA. Section 27 provides that everyone has a right to justice in all proceedings, and section 24 lists the rights of a person charged with an offence including the right to adequate time and facilities to prepare a defence, as discussed in Chapter 2. Section 25 lists the minimum rights of an accused in a criminal trial, of which the following are relevant:

3.8Some of these rights are given more detailed effect in the Criminal Disclosure Act 2008, the Criminal Procedure Act 2011, and the Evidence Act 2006 discussed below.

3.9International human rights jurisprudence does not readily permit departure from fair trial protections. For example, the European Court of Human Rights has said that “having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied”.98
3.10As the New Zealand Supreme Court noted in R v Condon,99 “the assessment of the fairness of a trial is to be made in relation to the trial overall. A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial.” The Court also noted that “the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair.” It is important for this review to keep these statements in mind. While there may be justifiable limits on the minimum standards of criminal procedure under section 25 of NZBORA, the overall conduct of proceedings must still be such as to ensure a fair trial.

Protection of other interestsTop

3.11Sometimes, the disclosure of relevant evidence will have implications for other important public interests. When other interests are in play, the court must seek an accommodation that will protect the accused’s right to procedural justice.

3.12Security agencies at times pass information to the Police to assist in criminal investigations and if the investigations lead to a prosecution, the national security information might give rise to disclosure obligations. If the information forms part of the background only, and is not relevant to an issue in the proceedings, it will not need to be disclosed. However, information would ordinarily be disclosed if it is material to the case against the defendant, unless there is a ground to oppose disclosure. There may be several reasons to oppose the disclosure of national security information. Most obviously, the information itself might be of a sort that presents an immediate risk to safety and security if made public. More commonly, the information might relate to the methods of information gathering by security agencies, and the disclosure of this evidence will undermine the ability to gather similar evidence in the future, or put an undercover agent in danger. Alternatively, the information may have been sourced through one of New Zealand’s international security information-sharing relationships, and the disclosure might damage that relationship.

3.13These issues could arise in the “worst-case scenario” criminal case of a terrorist attack. However, these issues also arise in more frequently occurring proceedings, such as the importation of illegal drugs. In any of these cases, the public interest in maintaining secrecy might be seen to outweigh the public and private interests in disclosure. For the purposes of this review, we are interested in where the lines should be drawn between the following responses:

(a) Excluding the evidence from the proceedings.
(b) Allowing the evidence to be used but with protective mechanisms such as partially redacting a document.
(c) Dismissing the proceedings.

3.14It is our preliminary view that the trial judge is best placed to make these decisions, subject to the prosecution’s ability to withdraw charges at any time. These decisions should be guided by the need to ensure a fair trial, the need to protect security information, and the public interest in prosecuting an offence. Legislation needs to give sufficient guidance to enable the trial judge to make these decisions in a principled manner, taking account of the particular facts of the case at hand. The process should focus on mechanisms to accommodate both sets of interests, and should therefore tend to enable evidence to be introduced with protections rather than being withheld or requiring the proceedings to be dismissed. The question is whether the current law provides for this or whether there is a need for reform. As the requirement of a fair trial is absolute (that is, no-one should be convicted of a criminal offence after an unfair trial), it is necessary to include the option of dismissing the proceedings. This is a backstop for the rare cases where national security evidence cannot be adequately protected through other mechanisms and cannot be excluded because doing so would result in an unfair trial.

95The accused must also have access to the information so that they can give proper instructions to counsel.
96See above at [2.48].
97ICCPR, above n 20 art 14(3).
98Van Mechelen v Netherlands (1998) 25 EHRR 647 (ECHR) at 691. In that case, the secret witness statements were the only evidence used by the Court in deciding that the accused were guilty.
99 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].