Chapter 3
Criminal proceedings

Issues arising from the current law

Criminal Disclosure Act 2008

3.19The Criminal Disclosure Act 2008 is directed at the disclosure of information by the prosecution to the defence before proceedings have begun.100 Section 13 of the Criminal Disclosure Act 2008 requires the disclosure of any relevant information, unless there is a reason to refuse the disclosure. The prosecutor must disclose a list of information that is being withheld and the reasons, and if the defendant requests, they must also provide grounds in support (unless giving grounds would itself prejudice the protected interests that justify nondisclosure of the information in question).

3.20Section 16 sets out reasons for withholding information. Of relevance to this project, section 16(1)(g) provides the following grounds for a prosecutor to withhold information:

(g) the disclosure of the information would be likely to prejudice—
(i) the security or defence of New Zealand or the international relations of the Government of New Zealand; or
(ii) the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation…

3.21Other grounds include that the disclosure is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences,101 that the disclosure is likely to endanger the safety of any person,102 that the material should be withheld to protect undercover Police officers103 or witnesses104 or victims,105 and that the disclosure would be likely to facilitate the commission of another offence.106 Material can also be withheld if disclosure would constitute a contempt of court,107 if the material is protected by other rules of evidence108 or disclosure would be contrary to the provisions of another enactment.109 Finally, information need not be disclosed if it is publicly available or has been previously made available, if it does not exist, or if it is irrelevant.

Pre-trial hearing on disclosure

3.22The initial decision whether to disclose or withhold information is made by the prosecutor. The defendant is then able to challenge this decision under section 30, which provides two possible avenues for objection. The first is that the reasons claimed for non-disclosure do not apply. The second is that, even though the information may be withheld (that is, the reasons apply), the interests in favour of disclosure outweigh the interests protected by withholding the information. Under section 30, the court may order disclosure of the information subject to “any conditions that the court considers appropriate”. This affirms the court’s role in weighing the competing interests under the Act. There is also case law to the effect that the court may view the information subject to the application.110

3.23There is a disadvantage for the defence. They would be limited in their ability to present arguments for disclosure given that they would not have seen the information. The court would be put in a difficult position as it would not have the benefit of informed defence submissions when deciding whether to disclose information. This issue arises in respect of all grounds under section 16 but could be particularly problematic for the national security grounds because the court has less experience assessing these grounds and there is less case law to provide guidance on the appropriate balancing.

3.24One possible solution would be to provide for a security-cleared special advocate to present arguments on behalf of the accused, or alternatively, a security-cleared amicus curiae to provide advice to the court to better inform their decision. The advantage of the special advocate is that they could view the information and form an independent view on both its level of security sensitivity, and the importance to the case being advanced by the defence. The special advocate would be able to advance the claim for disclosure on behalf of the defendant if the information was likely to assist their case. There would be procedural questions to be answered on matters such as the level of communication to be permitted between the special advocate and the defence’s chosen counsel. These issues apply wherever a special advocate might be called upon and are addressed more comprehensively in Chapter 6.

Question

Q2 Should there be a role for special advocates in a pre-trial hearing on disclosure under the Criminal Disclosure Act 2008?

Evidence Act 2006Top

3.25The Evidence Act 2006 concerns the admissibility of information as evidence in civil as well as criminal proceedings.111 Section 6 sets out its purpose as follows:

The purpose of this Act is to help secure the just determination of proceedings by—

(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
3.26The guiding principle of the Act is that relevant evidence is to be admitted unless there is a statutory reason not to.112 Evidence is relevant if it “has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.113 There is therefore a two-stage analysis: first, is the information relevant, and second, is there any reason to depart from the general rule and exclude the evidence?

Excluding evidence

3.27The Evidence Act 2006 contains exceptions to the general rule of admissibility, allowing relevant evidence to be excluded in order to protect other interests. Of particular relevance to this review are the grounds in section 69 and section 70. Section 69 gives the judge a broad discretion to exclude confidential information. This section has recently been interpreted to extend to information that the Police or security agencies hold in confidence.114 Section 70 provides a protection for “matters of state”. This gives the judge the discretionary power to direct that a communication or information not be disclosed if the judge is satisfied that the public interest in disclosure is outweighed by the public interest in withholding. Under section 52(2), an order under section 69 or 70 may be made on the judge’s own initiative or on an application by an “interested person”.

3.28Section 70 cross-references the non-disclosure grounds in section 6 of the Official Information Act 1982. This addresses some of the same grounds that are covered in section 16 of the Criminal Disclosure Act 2008: security and defence, entrusting of information to the Government of New Zealand, maintenance of law and investigation of offences, and personal safety. It also allows information to be withheld if disclosure would seriously damage the New Zealand economy.115 The judge must take account of the nature of proceedings when making a decision under section 69 or section 70, meaning that greater weight will be given to the interests in favour of disclosure in criminal cases compared with civil cases.

3.29If the information is withheld under section 70, it will not be available to support the prosecution’s case. It will be excluded from the proceedings and must not be taken into account in reaching a decision (even if the trier of fact is the judge who examined the evidence for the purpose of determining the disclosure question). There is no provision in New Zealand for evidence to be withheld from the accused, but also to be used against him or her.116

Protecting evidence used at trial

3.30In addition to the provisions that allow evidence to be excluded, the Evidence Act 2006 also provides mechanisms to enable evidence to be admitted in ways that protect other interests. In the context of criminal proceedings, the question for this review is whether these tools are sufficient to address the potential use of national security information.

3.31Of particular importance, section 52(4) of the Evidence Act 2006 gives the trial judge a broad discretion to limit the evidential use of “material relating to matters of State”. Under this section, the judge may “give any directions that are necessary to protect the confidentiality of, or limit the use which may be made of … any communication or information that is the subject of a direction under section 69 (confidential information) or section 70 (matters of State) …”. We are not aware of any case where this has been used. This section could be interpreted as giving the trial judge significant discretion to control the evidential use of national security information.

3.32The Evidence Act 2006 also contains specific provisions to allow evidence to be given in modified form. These include the rules that allow for a witness to give evidence other than in open court (Part 3, Subpart 5 of the Act), and those that allow hearsay evidence in expanded circumstances compared with the common law (Part 2, Subpart 1 of the Act). The expanded scope for admissibility of hearsay would enable security agents to repeat information received from informers based overseas who are unable to present evidence on their own behalf. Sections 108 and 109 contain protections for undercover Police officers, allowing evidence to be presented without revealing identifying details. There are no analogous provisions for undercover security agents.117 This is an area we consider could be usefully reformed.

Questions

Q3 Do sections 69 and 70 of the Evidence Act 2006 provide sufficient guidance to a trial judge in determining whether to exclude national security information?
Q4 Should undercover security agents be able to use the same protections currently available to undercover Police officers, and give evidence anonymously?
Q5 Does the Evidence Act 2006 provide sound mechanisms for national security information to be used in a criminal trial in a controlled way that protects against risks associated with full disclosure, while still allowing for it to be properly tested, given the primacy that should be afforded to fair trial rights?

Criminal Procedure Act 2011Top

Suppression orders

3.33Section 205 of the Criminal Procedure Act 2011 provides as follows:

Court may suppress evidence and submissions

(1) A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
 …
(f) prejudice the security or defence of New Zealand.
3.34This section affects how cases may be reported, both in law reports and in the news media, but does not affect how the case is heard. Conversely, section 197 of the Criminal Procedure Act 2011 contains the power for the trial judge to exclude the public, but not the defendant or their lawyers, from the court. The order must only be made if it is “necessary to avoid” one of the adverse outcomes listed, and only if a suppression order under section 205 is insufficient. Of relevance to this review, one of the grounds for “clearing the court” is that it is necessary to avoid prejudicing the security or defence of New Zealand. Under section 197(3), even if the court is cleared, the announcement of the verdict or decision and the sentence must take place in public. However, the court may decline to publicly state all the considerations taken into account if there are exceptional circumstances why these should be withheld.118

3.35This section demonstrates how open justice is currently reconciled with other interests deserving of protection within our criminal law. We consider that the “necessary to avoid” test under this section is appropriate given the importance of open proceedings in criminal law.

Dismissing a charge

3.36Section 147 of the Criminal Procedure Act 2011 enables the court to dismiss a charge before or during the trial. This does not expressly cover the situation that would arise where security interests require information to be withheld, but doing so would result in an unfair trial. An expansive reading of the powers in section 147 might allow for this, especially taking account of the obligations to give effect to fair trial rights under NZBORA.

3.37It is necessary that proceedings can be dismissed in situations where there is highly relevant national security material because otherwise there is a risk that either security interests or fair trial rights will become seriously compromised. For clarity, it may be desirable to amend section 147 of the Criminal Procedure Act 2011 to make this explicit, and possibly also to amend section 30 of the Criminal Disclosure Act 2008 to provide that dismissing the case is a possible resolution if security interests are sufficient to justify nondisclosure under section 16, but withholding the information would prejudice a fair trial. In most cases we would expect the prosecution to withdraw the charges however these powers would be available as a backstop.

Questions

Q6 Do the current provisions allowing suppression orders provide for proper balancing of national security interests on the one hand and open justice interests on the other?
Q7 Is there a need to make explicit the expectation that criminal proceedings will be discontinued if there is no other way to protect national security evidence and avoid prejudice to the accused, for example, through giving the judge the power to order that proceedings be dismissed rather than information disclosed?

100Prior to the Criminal Disclosure Act 2008, New Zealand had an uneasy patchwork of common law disclosure obligations combined with the Summary Proceedings Act 1957 and buttressed by the Official Information Act 1982 and the Privacy Act 1993. This raised several problems of application discussed in our previous reports on criminal disclosure. Law Commission Criminal Procedure: Part One - Disclosure and Committal (NZLC R14, 1990) and Law Commission Criminal Prosecution (NZLC R66, 2000).
101 Criminal Disclosure Act 2008, s 16(1)(a).
102 Criminal Disclosure Act 2008, s 16(1)(b).
103Criminal Disclosure Act 2008, s 16(1)(d).
104 Criminal Disclosure Act 2008, s 16(1)(e).
105 Criminal Disclosure Act 2008, s 16(1)(f).
106 Criminal Disclosure Act 2008, s 16(1)(h).
107 Criminal Disclosure Act 2008, s 16(1)(i).
108 Criminal Disclosure Act 2008, s 16(1)(c) and s 16(1)(j).
109 Criminal Disclosure Act 2008, s 16(1)(k).
110Edwards v R [2012] NZCA 375.
111 The Evidence Act 2006 applies only to cases before a court, not to cases before a tribunal.
112 Evidence Act 2006, ss 7–8.
113 Evidence Act 2006, s 7(3).
114Dotcom v Attorney-General [2013] NZHC 695 at [19]─[29].
115Official Information Act 1982, s 6(e).
116We note for completeness that, under the National Security Information (Criminal Proceedings) Act 2004, Australian law allows evidence to be used against an accused in a criminal trial without the evidence being made available to the accused or the accused’s lawyer. A certificate from the Attorney-General is required for evidence to be withheld in this manner. These provisions have been widely criticised by Australian academics and members of the bar, see for example Miiko Kumar “Secret Witnesses, Secret Information and Secret Evidence: Australia’s Response to Terrorism” (2011) 80 Miss LJ 1371 at 1394; John von Doussa “Reconciling Human Rights and Counter-Terrorism—A Crucial Challenge” (2006) 13 JCULR 104 at 118; Luke Beck “Fair enough? The National Security Information (Criminal and Civil Proceedings) Act 2004” (2011) 16 Deakin LR 405; and Faheem Khalid Lodhi v R [2007] NSWCCA 360 at [21].
117Spain, Germany and Sweden do not permit classified intelligence information to be used in court proceedings. However, provision is made for the introduction of “second-hand evidence” or “hearsay evidence” from witnesses (such as an intelligence officer or anonymous testifier) who have not in fact heard or seen the evidence: Directorate-General for Internal Policies National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges (European Parliament, September 2014).
118 While New Zealand has not yet had a case involving suppression of details of terrorist-type offending, this has occurred recently in the United Kingdom in the case of Guardian News and Media Ltd v Incedal [2014] EWCA Crim 1861, [2015] EMLR 2. For a discussion of the implications of suppression for open justice, with a particular focus on the role of reporting in news media, see Ian Corbain “Why is the crux of the Incedal case a secret? You’re not allowed to know” The Guardian (online ed, London, 26 March 2015).