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:
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.
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.
Q2 Should there be a role for special advocates in a pre-trial hearing on disclosure under the Criminal Disclosure Act 2008?
The purpose of this Act is to help secure the just determination of proceedings by—
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.
3.30In 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.
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?
3.33Section 205 of the Criminal Procedure Act 2011 provides as follows:
Court may suppress evidence and submissions
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.
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.
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?