3.38Decisions to exclude evidence will be guided by the judge’s duty to ensure a fair trial for the accused, and consequently to prevent information from being taken into account if it is unfairly prejudicial. While the public interest in prosecuting an offence is greatest when the offence is serious, the stakes are also highest for the accused person when the potential sentence is severe. For the purposes of this review, we are primarily concerned with the fair trial implications of withholding evidence that assists the defence case, or conversely, introducing incriminating evidence without allowing it to be properly tested.
3.39The Evidence Act 2006 gives the trial judge the task of determining when it is in the interests of justice to allow evidence to be used even though it cannot be fully disclosed in open court, and when it is in the interests of justice for evidence to be excluded because the finder of fact will not be able to adequately assess reliability in the circumstances. There is a need for mechanisms to allow information gathered by security agencies to be presented as evidence while protecting the aspects of the information that would create risks for national security if disclosed. This is subject to the requirement that the evidence must be presented in a way that allows it to be properly tested, thereby protecting fair trial rights.
3.40The current legislation presents a principled framework for reconciling the competing interests at hand. However, there are some areas that we consider could be usefully reformed, as indicated in the discussion above. We particularly invite consideration of whether the provisions allowing undercover Police officers to give evidence anonymously should be extended to undercover security agents. We also seek feedback on whether there is a need to provide additional specific powers to trial judges, for example, the power to appoint a special advocate in a claim under section 69 or section 70, or whether the current levels of judicial discretion are sufficient.
Q8 Are any further mechanisms, or any expansion of existing mechanisms, needed to enable national security information to be used as evidence in criminal trials, including for terrorist acts?