Evidence Bill

5 April 2005

Attorney-General

1. I have reviewed the Evidence Bill and conclude that it is not inconsistent with the New Zealand Bill of Rights Act 1990 (BORA).

General comments

2. The bill’s purpose is expressed to be:

to help secure the just determination of proceedings by -

(a) providing for facts to be established by the application of logical rules; and

(b) promoting fairness to parties and witnesses; and

(c) protecting rights of confidentiality and other important public interests; and

(d) avoiding unjustifiable expense and delay

3. The bill codifies many existing rules of evidence and procedure (common law or statutory), but also modifies some rules. In relation to matters not expressly provided for in the bill, courts are directed to have regard to the purposes set out in clause 6, the fundamental principle in clause 7 that relevant evidence is admissible and the overriding power in clause 8 to exclude evidence if its probative value is outweighed by its unfair prejudicial effect or would needlessly prolong the proceeding.

4. The nature of the Bill is such that the majority of provisions necessarily engage rights contained in the BORA, particularly:

4.1 In relation to civil proceedings, the right to the observance of the principles of natural justice in s27(1).

4.2 In relation to criminal proceedings, the fair trial rights contained in s25.

5. However, most provisions codify the current evidential rules that have been developed by the courts in order to ensure a fair trial or hearing and, since 1990, with regard to the BORA. Many provisions incorporate a significant degree of discretion on the part of the judge thereby enabling the provisions to be applied consistently with the BORA (s6 BORA). Some provisions expressly affirm rights contained in the BORA in exercising such discretion. For example, clause 64 expressly provides that public interest in respect of the disclosure of journalist’s sources, includes the defendant’s right to present an effective defence. Other provisions are expressed more broadly. Such discretions will need to be interpreted and exercised consistently with the BORA and are important provisions in ensuring the bill operates so as to respect the rights in the BORA.

6. Clause 26 is an important provision with respect to breach of any rights in the pre-trial process. The provision enables the Court to exclude evidence that is improperly obtained, including evidence obtained as a result of a breach of the BORA. In part, clause 26 represents an attempt to codify the principles relating to exclusion of evidence that can be elucidated from the decision of the Court of Appeal in R v Shaheed. The test incorporates a significant degree of flexibility as well as discretion of the judge to ensure that the law can continue to be developed and applied consistently with the BORA. In particular:

6.1 In undertaking the balancing exercise to determine whether or not evidence should be excluded a number of factors are listed that may be taken into account by the court; and

6.2 The list of factors that may be taken into account is not exhaustive.

7. In addition to the power to exclude evidence under clause 26, there is an overriding power in clause 8 to exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the outcome of the proceeding. This power has the potential to be utilised by the courts in the event that the application of a rule would result in a breach of the BORA.

8. As noted already, a large number of provisions in the Bill have the potential to engage the BORA. I do not discuss every such provision in this advice as most are BORA-consistent for the reasons set out in paragraphs 5 to 7 above.

9. I have considered it appropriate to advise you on the following provisions in detail:

9.1 Admissibility of hearsay evidence (Clauses 16 to 19).

9.2 Evidence of sexual experience of complainants in sexual cases (Clause 40).

9.3 The privilege against self-incrimination (Clause 56).

9.4 Evidence regarding juror deliberations (Clause 72).

9.5 Prohibition on personal cross-examination by defendants in domestic violence and sexual offence cases. (Clause 91).

9.6 Alternative ways of giving evidence (Clauses 99 to 115).

9.7 Freedom of expression issues.

Hearsay Evidence

Rule as to admissibility

10. The provisions relating to admissibility of hearsay evidence give rise to issues of consistency with s25(a) (right to a fair hearing) and s25(f) (right to examine witnesses for the prosecution).

11. The ability to admit hearsay evidence is subject to requirements as to the reliability of the statement and either the witness being unavailable or the Judge considering that undue expense and delay would be caused if the maker of the statement were required to be a witness.

12. The Court of Appeal has indicated that, subject to being satisfied as to its reliability, the admission of hearsay evidence is not necessarily inconsistent with the BORA.[1]

13. International jurisprudence also makes clear that it is permissible to use statements made by persons who do not give oral evidence at the trial provided fairness to the accused is maintained.[2] However, there is a risk that the rights to a fair hearing and to examine witnesses for the prosecution may be breached where a conviction is based solely upon hearsay evidence. The European Court of Human Rights has required that there be some evidence that supports the charge other than the hearsay evidence.[3]

14. In my view, the conditions for admissibility set out in clause 18 are consistent with the rights contained in s25:

14.1 The list of circumstances set out in clause 16(1) that can be taken into account in determining whether the statement is reliable include the nature and contents of the statement. Furthermore, the list is not exhaustive. If it was necessary to do so in order to ensure a fair trial, the court would be able to take into account whether or not there is supporting evidence in determining whether or not there is a reasonable assurance as to reliability.

14.2 Similarly, where the witness is available the question of whether ‘undue’ expense and delay would be caused by requiring the witness to be called will necessarily involve a consideration of the rights in s25.

15. In addition:

15.1 Clause 8 provides for an overriding power to exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the outcome of the proceeding; and

15.2 Criminal trial procedures could operate so that, even where hearsay evidence is admitted, a judge (with or without a jury) could determine that there is no case to answer.

Requirement to give notice

16. Any party who proposes to offer a hearsay statement in a criminal proceeding is required to give notice of such statement, including the maker of the statement and its contents (clause 19). This is a departure from the present position where, whilst the prosecution is required to disclose its case, the defendant is not.

17. A number of other provisions in the Bill impose similar obligations on a defendant to give notice of evidence he/she intends to call.

18. Whilst this may be a departure from current pre-trial procedures, such a requirement does not breach the BORA. In particular:

18.1 The right to a fair hearing in s25 does not incorporate a right of the defence to surprise the prosecution. Although there is a history in New Zealand criminal law of requiring full disclosure by the prosecution but not by the defence, this is not a practice shared by many other jurisdictions. Section 25 incorporates the principle of ‘equality of arms’. Where the prosecution is required to disclose all evidence in advance of a hearing, it cannot be said that the principle of equality of arms is breached by also requiring limited (or even full) disclosure by the defence.

18.2 In any event, there is a broad discretion of the judge to dispense with the requirement, including on the basis that the interests of justice require it (see, in relation to hearsay evidence, clause 19(3)).

Evidence of sexual experience of complainants in sexual cases

19. Clause 40 of the bill places limitations upon adducing evidence of the sexual experience of complainants in sexual cases. Permission of the judge is required before any evidence can be given or a question asked of a witness that relates directly or indirectly to the sexual experience of the complainant with any person other than the accused.

20. Permission is not required to adduce evidence of the complainant’s sexual experience with the defendant, or where the defendant is charged as a party to a sexual offence.

21. The history and justification of restrictions upon evidence of a complainant’s sexual history and reputation is discussed by Lord Steyn in R v A (No 2).[4] The provisions under consideration by the House of Lords were, at least on their face, considerably more restrictive than the proposed clause 40. In particular, they did not include any ability to admit evidence relating to the complainant’s sexual history with the accused. To ensure compatibility with the right to a fair trial such a discretion was ‘read in’ to the statutory provision.

22. In respect of the restrictions contained in the proposed clause 40, there is ultimately a power of the judge to exercise a discretion to admit the evidence in the interests of justice because of its direct relevance to facts in issue in the proceeding or to the issue of the appropriate sentence. Clause 40(3) provides that evidence is not of ‘direct relevance’ merely because it raises, or may raise, an inference about the general propensity of the complainant in sexual matters. The comments of Lord Steyn in R v A (No 2) are particularly relevant to a consideration of this qualification. He stated:[5]

Discriminatory stereotypes which depict women as sexually available have been exposed as an affront to their fundamental rights. Nevertheless, it has to be acknowledged that in the criminal courts of our country, as in others, outmoded beliefs about women and sexual matters lingered on. In recent Canadian jurisprudence they have been described as the discredited twin myths, viz "that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief": R v Seaboyer (1991) 83 DLR (4^th) 193, 258, 278C, per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system.

23. I do not think that the proviso of ‘direct relevance’ or the qualification in clause 40(3) would restrict a court in applying the discretion consistently with the rights in s25 of the BORA. Accordingly, the proposed provisions are not inconsistent with the rights contained in the BORA.

Privilege against self-incrimination

24. Clause 56 provides for a general rule for persons to claim a privilege against self-incrimination. It applies to ‘specific information’ being required in the course of a proceeding, by a person exercising a statutory power or duty or by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence.

25. However, clause 56 contains restrictions upon the ability to claim the privilege, including:

25.1 Clause 56(3) provides that the privilege can be claimed unless an enactment removes the privilege either expressly or by necessary implication. The courts have always considered that the common law privilege can be abrogated by statute in this way.[6]

25.2 It does not apply to a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried (clause 56(3)(c)).

25.3 It does not enable bodies corporate to claim the privilege (clause 56(3)(b)).

25.4 It does not apply in respect of the production of pre-existing documents (clause 47(3)).

Common law privilege

26. The privilege against self-incrimination is deeply embedded in the common law.[7] It is closely linked to the right of silence which has been analysed by the House of Lords as including the following:[8]

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity ... possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial or (b) to give evidence at the trial.

27. However, the Courts have always recognised that the privilege can be removed or moderated by statute and, more recently, the House of Lords has expressed considerable doubt about the continuing appropriateness of the privilege.

28. In Istel Ltd v Tully[9] the House of Lords considered the privilege in the context of a corporation which sought to rely upon the privilege in refusing to produce documents in a civil proceeding. Lord Templeman referred to the historical justifications for the privilege set out in the judgment of Lord Mustill in R v Director of Serious Fraud Office Ex. p. Smith[10] delivered only a month earlier and said:[11]

Finally Lord Mustill referred, at p. 32 B-C, to:

"the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are ‘voluntary.’"

This is a powerful reason for the existence of the privilege against self-incrimination in certain circumstances. Indeed, in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions.

29. Lord Templeman went on to question the efficacy of the privilege in protecting persons from ill-treatment and production of dubious confessions.[12] He noted the various legislative provisions that had overridden the privilege, including wide powers of inspectors under the Companies Act 1985 (UK), the Insolvency Act 1986 (UK) and in respect of investigations involving serious or complex fraud. He described those provisions as ‘Parliament [having] recognised in a piecemeal fashion that the privilege against self-incrimination is profoundly unsatisfactory when no question of ill-treatment or dubious confessions is involved’.[13]

30. Lord Griffiths agreed with the comments of Lord Templeman, stating:[14]

[T]he privilege against self-incrimination is in need of radical reappraisal. It is however deeply embedded in English law and can only be removed or moderated by Parliament.

31. He went on to say:

Criminal financial fraud on a vast scale has emerged as a threat to the financial health of the community. Those who commit these crimes must be pursued most vigorously under the criminal law; if they are allowed to get away with it others will take encouragement and follow their example….

32. Their Lordships expressed particular concern about the appropriateness of the privilege in relation to documents. Lord Griffiths stated:[15]

I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the holder has committed a criminal offence.

The contents of the document will speak for itself and there is no risk of the false confession which underlies the privilege against having to answer questions that may incriminate the speaker.

33. Similar comments can be found in the judgment of Lord Ackner with whom Lord Goff agreed and by Lord Lowry who stated:[16]

What one needs to recognise, as my noble and learned friends have done, is that the privilege against self-incrimination must prevail, unless it has been modified or abrogated by statute. And, even if one can see that the reasons which caused the principle to be adopted provide no logical justification for such an immunity as the privilege against producing incriminating documents which came into existence before any dispute arose, that immunity holds sway.

Protections in ss 23 and 25(d)BORA

34. Sections 23(4) and 25(d) of the BORA incorporate a limited right to silence and a privilege against self-incrimination. However, the rights contained in the provisions are not as broad as those protected at common law.

35. Whilst the common law protects a right to silence of all persons at the investigation and pre-trial stages, the right to silence in s 23(4) is afforded only to persons who are arrested or detained under an enactment. Section 24 of the BORA, which deals with rights of persons charged, does not incorporate any right to silence.

36. Section 25(d) provides that:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(d) The right not to be compelled to be a witness or to confess guilt.

37. The rights in s25 of the BORA are based upon Article 14 of the International Covenant on Civil and Political Rights. In its General Comment 13/21, the Human Rights Committee stated:

Subparagraph 3(g) [the equivalent of s25(d) BORA] provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, subparagraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.

A further protection in s25(a) BORA?

38. The privilege against self-incrimination may not only be protected by ss 23 and 25(d) of the BORA, but may be implicit in the right to a fair trial in s25(a).

39. The European Convention on Human Rights contains no equivalent express protection of the privilege against self-incrimination at any of the investigation, pre-trial or trial stages.

40. However, the European Court has held that the privilege is implicit within the right to a fair trial.[17] Although the extent of the privilege protected by the right is not entirely clear (particularly whether it protects the privilege at the criminal investigation stage), it is clear that the right to a fair trial can be breached where compulsory powers are used to obtain evidence which is then adduced by the prosecution in the hearing of criminal charges.[18]

41. Given that the right to silence or privilege from self-incrimination are expressly provided for in ss23 and 25(d) of the BORA, it is strongly arguable that the European cases on the right to a fair hearing should not be followed with respect to the interpretation of the right to a fair hearing in s25(a) of the BORA.

42. Furthermore, even if the privilege were found to be implicit in s25(a), it can only relate to the admissibility of evidence in respect of the determination of a charge. It would not extend to protect a person from investigations in respect of regulatory matters. [19]

Defendants who elect to give evidence in criminal proceedings

43. Where a defendant elects to give evidence in a criminal proceeding, he/she cannot claim the privilege in order to resist prosecution cross-examination on matters relevant to the charges he/she faces.

44. It could be argued that this amounts to a breach of the rights contained in s25 of the BORA, particularly the right in s25(d). The better view is that it does not. The restriction on the ability to claim the privilege must be read in the light of the fact that an accused cannot be required to give evidence in his/her criminal trial. If an accused elects to give evidence he/she does so in the knowledge that he/she is likely to be cross-examined by the prosecution in order to prove that the accused committed the offence. Indeed, the prosecution is obliged to put the prosecution’s case to the accused and give him/her an opportunity to respond. It could well be argued that failure to put those matters to the accused would breach the accused’s right to a fair trial. Where an accused elects to give evidence the element of compulsion required for a breach of s25(d) is absent.

Availability of the privilege in respect of pre-existing documents

45. The current position at common law is that the privilege can be claimed in response to demands for the production of documents.[20] Clause 56 would remove the privilege in respect of documents already existing at the time the information is requested.

46. The rights in s23 of the BORA do not extend to the production of documents. Insofar as the rights in s25 have the potential to cover production of documents, any limitation on that right would be justified having regard to:

46.1 The policy reasons set out in the Law Commission’s discussion paper[21] and in the comments of the House of Lords in the Istel case,[22] discussed above; and

46.2 The significant protection afforded by s21 with respect to unreasonable search and seizure and the ability of a court to exclude such evidence (as affirmed in clause 26 of the Bill).

Bodies corporate and the privilege against self-incrimination

47. The provisions in clause 56 are intended to have the effect of removing the ability of bodies corporate to claim the common law privilege against self-incrimination. However, clause 56(3) provides that:

Subsection (2) does not enable a claim of privilege to be made … on behalf of a body corporate.

48. The clause does not affect a body corporate’s power to make a claim of privilege under other legislative provisions and it is strongly arguable that the wording of clause 56(3) is not sufficiently strong to remove any privilege that might arise independently under the BORA.

49. Furthermore, clause 56 of the Bill cannot of itself amount to a breach of either s25(a) or s25(d). It is the act of compulsion to confess guilt that can amount to a breach under s25(d) or the use of evidence obtained on compulsion that could arguably amount to a breach under s25(a). A failure to provide for a right against self-incrimination does not of itself amount to a breach of the BORA.

50. For these reasons alone, I would conclude that the provisions are not inconsistent with the BORA.

Extent of ability of a body corporate to claim the privilege under the BORA

51. The current position in New Zealand is that bodies corporate can claim the privilege against self-incrimination.[23] In New Zealand Apple and Pear Marketing Board v Master & Sons Ltd the defendant company was prosecuted for refusing or neglecting to allow an inspector of the Board to examine its fruit. In defending the prosecution, the company argued that it was entitled to claim the privilege against self-incrimination. On the facts of the case, the court held that the privilege was not available to the company. However, the court discussed the question of whether or not the privilege was available to companies. The court rejected the Australian position set out in the judgment of Murphy J in Pyneboard Pty Ltd v Trade Practices Commission[24] (following American authorities) where he said:

The privilege is personal, so that one required to produce documents cannot resist production on the ground that this would tend to incriminate another. The history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities.

52. However, it should be emphasised that the extent of the common law privilege insofar as it applies to corporations is not entirely clear. The New Zealand Apple and Pear Marketing Board case considered the availability of the privilege in the context of production of items for inspection. It is not clear whether a corporation’s privilege would extend to preventing an officer from being compelled to give evidence for the prosecution. In Canada, it is clear that officers and employees, including an officer who is a ‘directing mind’, are compellable witnesses at the instance of the Crown where the corporation is accused of a criminal offence.[25]

53. The ability of a body corporate to claim the privilege under the BORA is very limited and it is doubtful whether it exists at all.

54. Section 29 of the BORA provides:

Except where the provisions of this Bill of Rights otherwise provide, the provisions of this Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons.

55. As noted above, the privilege against self-incrimination is partially incorporated in s23(4), s25(d) and, arguably, s25(a) of the BORA.

56. Clearly, section 23(4) cannot apply to a body corporate as a body corporate cannot be arrested or detained.

57. The Law Commission has observed that it is less clear whether s25(d) can apply to bodies corporate because a body corporate cannot be a witness.[26] This was the approach taken by the Supreme Court of Canada in respect of s11(c) of the Charter.[27] However, in addition to the right not to be compelled to be a witness s25(d) refers to ‘or to confess guilt’. Section 25(d) could apply insofar as it protects a person from otherwise being compelled to confess guilt, although it is self-evident that a body corporate could not be compelled to confess guilt in a manner which might amount to a breach of other rights such as torture as discussed by the Human Rights Committee in its general comment (see para 37 above).[28] It is also strongly arguable that the privilege against self-incrimination incorporated in s25(d) of the BORA is much more akin to the personal one described by Murphy J above. It does not protect a body corporate from incrimination by others (including its officers).

58. The right to a fair trial contained in s25(a) can apply to a body corporate. The White Paper commentary states that ‘there can be no good reason to deny corporations charged with offences the basic safeguards of a fair trial’.[29]

59. However, there is no direct support in the international jurisprudence for the proposition that the right to a fair hearing would be breached where a body corporate has been unable to avail itself of the privilege against self-incrimination. To the contrary, as the Law Commission has noted, a number of other countries, notably Canada, Australia and the United States, do not afford the privilege to bodies corporate. As with s25(d), it is strongly arguable that any right to silence implicit in s25(a) is a personal one and does not protect a person from incrimination by others.

60. Even in the United Kingdom, which recognises the privilege for bodies corporate, comments of the House of Lords discussed above suggest that such a privilege may not be a necessary part of a body corporate’s right to a fair trial. A body corporate cannot be subjected to ill-treatment nor can it be forced to make a dubious confession in the same way as an individual. Furthermore, the right to a fair trial involves a balancing exercise which includes wider societal interests. Those interests are discussed by the Law Commission in reaching its conclusion that it is appropriate to remove such right from bodies corporate.

61. Even if ss25(a) and/or (d) enable bodies corporate to claim the privilege, the rights may be justifiably limited pursuant to s5 of the BORA. In our view, in respect of existing powers to compel the disclosure of information, the right is justifiably limited having regard to the policy issues advanced by the Law Commission and referred to in paras 226-239 of its discussion paper. Any legislation giving further powers of compulsion would need to be considered in the light of the unavailability of the privilege.

Evidence regarding juror deliberations

62. Clause 72 provides for a general rule that no person may give evidence about the deliberations of a jury. To qualify for the exception, two conditions must be satisfied:

62.1 That the evidence tends to establish that a juror has acted in breach of the juror’s duty; and

62.2 The public interest in avoiding or remedying any possible miscarriage of justice outweighs the public interest in protecting the confidentiality of juror deliberations.

63. The provision represents a relaxing of the present common law rule on the inadmissibility of evidence of jury room deliberations.

64. The compatibility of the common law rule with the fair trial rights in the Human Rights Act 1998 (UK) has been the subject of consideration by the House of Lords.[30] The European Court of Human Rights had found that fair trial rights had been breached in a number of cases where notes from the jury during the course of the trial indicated racial bias but the jury had been given a direction or warning rather than being discharged.[31] The House of Lords had to consider the common law rule in the context of letters having been received from jurors subsequent to a guilty verdict but before the hearing of an appeal.

65. Whilst the appeals were dismissed by all of their Lordships, the majority considered that the common law rule did not need to be relaxed. Lord Steyn, however, concluded that under Article 6 of the Convention, in exceptional circumstances evidence of jury deliberations may need to be admitted.[32] The examples of exceptional circumstances were:

65.1 A juror reveals after verdict that during the jury deliberations it emerged that some members of the jury were associated with a Neo-Nazi group and that they urged the conviction of the accused because he was a black immigrant;

65.2 A juror reveals after verdict that a majority of the jury refused to deliberate and that the jury ultimately arrived at a verdict of guilty by spinning a coin.

66. It remains to be seen what the view of the European Court of Human Rights will be. However, clause 72 significantly relaxes the common law rule[33] and the exception could be interpreted to accommodate the examples referred to by Lord Steyn in the event that this was necessary to ensure consistency with the BORA.

Prohibition on personal cross-examination by defendants in domestic violence and sexual offence cases

67. Clause 91 imposes restrictions upon the cross-examination of child witnesses and complainants by the accused personally.

68. There is a general discretion (clause 91(2)) in all civil and criminal proceedings for a Judge to order that a party to a proceeding must not personally cross-examine the witness. By reason of the broad discretion afforded to the Judge the provisions can be operated so as to respect the rights in the BORA.

69. However, there is no such discretion in respect of a criminal proceeding that involves sexual offending or a proceeding concerning domestic violence. In such cases:

69.1 The defendant is not entitled to personally cross-examine a complainant;

69.2 The defendant may only personally cross-examine child witnesses with the permission of the Judge.

A right to personal cross-examination?

70. European cases confirm that art 6(3)(c) of the European Convention on Human Rights guarantees an accused person that proceedings against him will not take place without an adequate representation of the facts of the case for the defence, but that it does not give an accused person the right to decide for him/herself in what manner such defence should be assured. In X v Austria[34] the Commission observed that "the decision as to which of the two alternatives should be chosen, namely the applicant’s right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, rests with the competent authorities concerned". The European Court of Human Rights has held that mandatory legal representation is permissible under the European Convention on Human Rights.[35] The United Nations Human Rights Committee has, by a majority, considered that mandatory professional defence in the case of serious offences is permissible.[36]

71. The wording of s25(f) differs from the wording of the parallel provisions in the ICCPR (art. 14(3)(c)) and the ECHR (art. 6(3)(d)). The parallel provisions in the ICCPR and ECHR provide for the ‘right to examine, or have examined, witnesses for the prosecution’. It may be argued that the absence of the words ‘or have examined’ means that BORA gives the accused an absolute right to personally examine witnesses for the prosecution. However, the wording of the ICCPR takes into account the differences between adversarial and inquisitorial systems. Section 25(f) adopts the wording relevant to the adversarial system and is not intended to establish a right of an accused to personally conduct the examination, rather than a lawyer.

Right to a fair trial - s25(a)

72. The judge is able to give permission for an accused to personally cross-examine a child witness (other than the complainant). By reason of the discretion, the provision can operate so as to respect the right to a fair trial.

73. However, the prohibition against personally cross-examining the complainant is absolute. The question is whether, in a particular case, the preclusion of the accused from personally cross-examining witnesses may give rise to a breach of the right to a fair hearing.

74. The alternative procedures for unrepresented defendants represent a departure from the usual adversarial processes. They are therefore likely to be carefully scrutinised by a Court.

75. The assessment of whether the right to a fair hearing in s25(a) has been breached involves a balancing of the interests of the accused, the public interest and the interests of witnesses.[37]

76. There are significant public interest factors and interests of witnesses in respect of personal cross-examination of complainants in sexual and domestic violence cases, including:

76.1 The relationship between the accused and the complainant, particularly in domestic violence cases.[38]

76.2 The nature of the offences and, in particular, the unfairness to a victim of a sexual assault in requiring or allowing him/her to be personally cross-examined by his/her attacker such that he/she is forced to relive the ordeal.[39]

76.3 The difficulties associated with inadequate reporting and prosecuting of such offences. The difficulties associated with the prosecution of domestic violence offences have been expressly recognised by the Court of Appeal.[40] These difficulties indicate that a mandatory provision is important to reassure complainants that if they proceed with the complaint there is no risk of being cross-examined by the defendant personally.

77. Against these public interest factors and fairness to the victim are the rights of the accused. However, the bill contains significant measures to minimise the impact upon the accused.

77.1 The accused can have the questions put by a lawyer, by the judge or by a person appointed by the judge for that purpose.

77.2 The judge is directed to give a warning to the jury in terms of clause 119.

78. Taking all of these factors into account, the provisions do not breach the rights in s25.

Alternative modes of giving evidence

79. Clauses 99 to 102 enable a judge to direct that a witness gives evidence in an alternative way. Whilst this is frequently used in relation to child witnesses, recent experience demonstrates that such orders may need to be available to the court in order to protect a witness’ rights under the BORA. [41]

80. In relation to child complainants in criminal proceedings, the prosecution must apply for such a direction. However, there is no requirement that such an order be made. When considering whether to make a direction the judge is expressly directed to have regard to the need to ensure that there is a fair trial (clauses 99(4) and 103(4)). The discretionary nature of the order is such that the provisions can be operated so as to respect the rights in the BORA.

Witness anonymity orders

81. The Bill re-enacts the provisions relating to witness anonymity that are presently contained in the Evidence Act (as amended by the Evidence (Witness Anonymity) Amendment Act 1997).

The applicable rights

82. The right to a fair trial is obviously relevant (s 25(a)). In addition, the right of an accused to know the identity of witnesses for the prosecution is part of the protections provided for in the Bill of Rights. Although not expressly stated, it can be seen to be part of the rights in s 25 in particular ss 25(a) (right to a fair and public hearing); s 25(e) (right to present a defence); and s 25(f) (right to examine the witnesses for the prosecution). It is also possibly part of the rights in s 24(d) (to have adequate time and facilities to prepare a defence).

83. It is not necessary to deal with each of these rights separately because, in this context, they raise similar considerations.

Fair trial and the right to know the identity of witnesses

84. There would clearly be Bill of Rights difficulties with any legislative provision which took away an individual’s right to a fair trial. As Thomas J (dissenting) said in R v Hines,[42] "the right to a fair trial is sacrosanct".[43] The bill is satisfactory in this respect as the making of the various orders requires consideration of the effect on fair trial.

85. As Thomas J also noted, a fair trial is not itself an absolute concept.[44] Hence, the various safeguards which are designed to ensure a fair trial are not absolute. As stated by Richardson P:[45]

Assessment of the values underlying the right to a fair trial by everyone charged with an offence must also recognise the public interest in the effective prosecution of criminal charges and the protection of the criminal process and witnesses and their families from intimidation or other matters affecting the adducing of their evidence.

86. In their judgments in Hines, their Honours indicated that witness anonymity provisions then being considered by the Law Commission could be consistent with the BORA.

87. Blanchard J was not prepared to change the law but said that if he was, he would depart from Hughes and declare,[46]

"that the identity of a prosecution witness may be withheld (subject to its being made known to the presiding Judge) if the Court determines, after independent investigation concluded on its behalf and a voir dire, (a) that the trial will remain fair to the accused and (b) that the revelation of the witness’s identity will place the witness or any other person at serious risk of physical harm."

88. Both of the two dissenting judges (Gault and Thomas JJ) would allow limits on the right of confrontation. Gault J placed importance on the need for balance between the relevant rights. Thomas J similarly referred to the other rights involved including those of witnesses to life, not to be subjected to disproportionately severe treatment, and to freedom of movement and residence in New Zealand. Gault J would apply the following criteria:[47]

88.1 The decision should be one for the courts to determine in particular cases with only general guidance from the legislature.

88.2  There must be an overriding constraint upon the power, that it must not in the particular case deprive an accused of a fair trial.

88.3 Permission to withhold identity should be given only where it is necessary. Other means of protecting witnesses must be shown as likely inadequate.

88.4 Anonymity should not be given in cases of witnesses whose credibility reasonably is in issue.

88.5 The Court should be satisfied (and he favours independent inquiry) that there are no aspects of the background of the witness potentially undermining of general credibility.

89. Thomas J similarly referred inter alia to the need for the court to be satisfied that the witness or other persons will be exposed to the risk of serious physical harm; for consideration to have been given to other means of protection; and that the Judge would have to be satisfied that the anonymity order was in the interests of justice.

90. The Law Commission in its discussion paper on "Witness Anonymity" (Preliminary Paper 29) similarly reached the provisional view that a High Court judge should be able to make a witness anonymity order in relation to indictable criminal proceedings.

91. The current provisions of the Evidence Act were considered by the Court of Appeal in R v Atkins [2000] 2 NZLR 46. In that case the Court of Appeal was considering the granting of witness anonymity orders on the basis of the safety of the witnesses and other persons. The Court emphasised that the cases in which a witness anonymity should be made ‘will be rare cases, based on their own particular circumstances…. The power is to be used sparingly.’ Nevertheless the Court did not make any adverse comment as to the consistency of the current witness anonymity provisions with the BORA.

92. The current provisions are essentially being re-enacted. The discretionary nature of the order is such that the courts must exercise the discretion consistently with the BORA. As indicated by the Court of Appeal as being appropriate, the provisions provide for general guidance but ultimately it is up to the court to decide whether an order is appropriate in a particular case. Accordingly, the provisions are not inconsistent with the BORA.

‘Serious damage to property’

93. The provisions enable a court to make an order where:

93.1 The safety of the witness or of any other person is likely to be endangered; or

93.2 There is likely to be serious damage to property.

94. ‘Serious damage to property’ is not defined. Accordingly, it will have to be interpreted consistently with the BORA. In most cases involving large-scale damage to property, there will be some accompanying risk of physical harm whether it is to the occupants or users of the property or to rescuers.

95. Having regard to the comments of the Court of Appeal and the international jurisprudence, it would have to be an exceptional case for the discretion to be exercised consistently with BORA where there is no risk of physical harm to a person. In circumstances where there is no risk of physical harm it would be very difficult to satisfy the criteria enunciated by Blanchard, Thomas or Gault JJ.

96. In terms of international jurisprudence, Dutch law includes a power to make witness anonymity orders on the basis of threatened ‘socio-economic’ existence.[48] The European Court of Human Rights has considered anonymity orders made under the Dutch provisions on three occasions. Each case considered by the European Court has concerned orders made for the protection of the personal safety of witnesses. Even then, in two out of the three cases, the European Court found that the applicant’s Convention rights had been breached.[49]

97. Whilst accepting that witness anonymity orders may be appropriate in some circumstances, the European Court has repeatedly stated:

All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3(d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage.

98. Having regard to the approach of the European Court to these matters generally, if faced with an anonymity order made on the basis of risk of damage to property only, it is highly likely that the Court would find that the accused’s Convention rights were breached.

99. Furthermore, as the Court of Appeal has done in Hines, the European Court has made it clear that the protection of witnesses through witness anonymity orders can justify restricting the right to a fair trial by reason of other rights in the Convention.[50] However, whilst the European Convention includes the right to respect for private and family life (Article 8) and the right to protection of property (Article 1 to the First Protocol), the BORA does not provide for comparable rights.

100. Accordingly, even if the European Court were to consider that protection of property rights outweighed an accused’s rights to a fair trial and equality of arms (which is highly doubtful), such a decision would have no direct application in New Zealand. There are no comparable property rights in the BORA. Rather, in New Zealand, it will be the victim’s right to a fair trial that will need to be balanced against that of the accused.

101. In conclusion, it would be an exceptional case where the risk of property damage, without any accompanying risk to persons, could be the basis for a witness anonymity order. In most cases there will need to be some kind of risk to persons for the damage to property to be ‘serious’. However, given the interpretative requirement in s6 of the BORA and the highly discretionary nature of the power to make witness anonymity orders, I do not think the provisions are inconsistent with the BORA.

Freedom of expression issues

102. A number of provisions in the bill raise impose restrictions upon publication, including:

102.1 Clause 82 - disallowed questions and answers thereto, and questions and evidence in response where the judge has informed a witness he/she is not required to answer and has ordered must not be published.

102.2 Clauses 107 and 109 - witness details where a witness anonymity order is made.

103. Article 14 of the ICCPR expressly recognises that:

The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

104. The restrictions on freedom of expression contained in the bill are clearly justified.

Yours faithfully

Footnotes

1 R v L [1994] 2 NZLR 54 (CA).

2 Trivedi v United Kingdom (1997) DR 136, Eur. Comm. HR; Quinn v United Kingdom App No. 23496/94, 11 Dec 1997; R v Gokal [1997] 2 Cr. App. R. 266; R v Thomas [1998] Crim. L.R. 887; McKenna v Her Majesty’s Advocate 2000 SCCR 159.

3 See, for example, Kostovski v Netherlands (1990) 12 EHRR 434; Unterpertinger v Austria (1991) 13 EHRR 175; Delta v France (1993) 16 EHRR 574; Saidi v France (1993) 17 EHRR 251; Doorsen v Netherlands (1996) 22 EHRR 330; Van Mechelen v Netherlands (1998) 25 EHRR 647.

4 [2002] 1 AC 45, 59-64.

5 Ibid 59.

6 See Taylor v New Zealand Poultry Board [1984] 1 NZLR 394.

7 Istel Ltd v Tully [1993] A.C. 45 at 57F.

8 Per Lord Mustill, R v Director of Serious Fraud Office, ex p Smith [1993] AC 1, 30F-31B.

9Supra n.

10 [1993] A.C. 1.

11 Supra n at 53.

12 Ibid at 53D.

13 Ibid at 53G.

14 Ibid at 57F.

15 Ibid at 57F.

16 Ibid at 67D.

17 Funke v France (1993) 16 EHRR 297.

18 See Saunders v United Kingdom (1997) 23 E.H.R.R 313 and the decision of the House of Lords in R v Herfordshire CC Ex. p.Green Environmental Industries Ltd [2002] 2 AC 412.

19 See Saunders v United Kingdom (1997) 23 EHRR 313 regarding evidence obtained during an investigation by the Department of Trade and Industry under the Companies Act 1985 but used in criminal proceedings; Abas v Netherlands [1997] EHRLR 418 regarding information given to tax authorities which resulted in a subsequent search producing evidence used in a prosecution for tax evasion. There the Commission stated that compulsory powers are regarded as necessary in most countries to allow tax inspectors to carry out their functions.; and IJL, GMR and AKP v United Kingdom [2001] Crim LR 133 where it was found that the compulsory questioning by the Department of Trade and Industry did not itself infringe Article 6 although the use of the evidence at the subsequent criminal trial did.

20 See, for example, Taranaki Co-Operative Dairy Co Ltd v Rowe [1970] NZLR 895.

21 ‘The Privilege Against Self-Incrimination - A Discussion Paper’, September 1996.

22 Supra n.

23 [1986] 1 NZLR 191.

24 (1983) 45 ALR 609 at 622.

25 R v Judge of General Sessions of the Peace for County of York (1970), 16 DLR (3d) 609; Corning Glass Works of Canada Ltd v The Queen (Ont. C.A.), and R v N.M Paterson & Sons Ltd (1980), 117 D.L.R. (3d) 517.

26 ‘The Privilege Against Self-Incrimination - A Discussion Paper’ September 1996.

27 R v Amway Corp (1989) 56 DLR (4^th) 309.

28 The Canadian cases ibid do not assist in this regard because the equivalent provision in the Charter provides ‘Any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence’.

29 ‘A Bill of Rights for New Zealand’ para 10.181.

30 R v Mirza; R v Connor & Rollock [2004] 1 AC 1118.

31 Gregrory v UK [1997] ECHR 22299/93; Sander v UK (2000) 8 BHRC 279.

32 Ibid at 1136.

33 The proposed provision is the subject of comment, and resulting criticism, to this effect by Lord Hope, ibid at 1164.

34 Application number 1242/61.

35 See Croissant v Germany (1993) 16 EHRR 135 and Imbroscia v Switzerland (1994) 17 EHRR 441 Croissant v Germany (1993) 16 EHRR 135 and Imbroscia v Switzerland (1994) 17 EHRR 441.

36 See UN docs CCPR/C/SR 132 (May 16, 1994) report on Jordan.

37 As was the approach of the Court of Appeal in R v Hines [1997] 3 NZLR 529 at 549 where Richardson P and Keith J noted that ‘Assessment of the values underlying the right to a fair trial by everyone charged with an offence must also recognise the public interest in the effective prosecution of criminal charges and the protection of the criminal process and witnesses and their families from intimidation or other matters affecting the adducing of their evidence.’ See also Doorson v Netherlands (1997) 23 EHRR 330.

38 Law Commission ‘The Evidence of Children and Other Vulnerable Witnesses’ paras 177-178.

39 In the Ralston Edwards rape case in 1996, the complainant was examined at length by the accused who also wore the same clothes in court that he had worn when the rape occurred. In M v United Kingdom Unreported (1999), the complainant had been subjected to lengthy questioning about sexual details by the defendant in person in a rape trial. She alleged that her rights under Article 3 of the European Convention on Human Rights had been breached. The application was withdrawn when the government stated its intention to introduce legislative protection. Those protections are contained in the Youth Justice and Criminal Evidence Act 1999 (s34).

40 R v M-T [2003] 1 NZLR 63 at 71 per McGrath J. The Law Commission report on the Domestic Violence Act 1995 in April 2000 discussed the barriers to access, including fear of seeing the other person in court, and fear or distrust of the court environment itself.

41 The Police v Razamjoo (unreported, Judge Moore, 17 January2005). Counsel for the prosecution sought an order that two women witnesses give evidence without wearing a burqa. The women relied upon their religious freedom rights contained in ss13 and 15 of the BORA. The judge ultimately ordered that the women remove their burqa to give evidence but that they should only be seen by the judge, counsel and a woman registrar.

42 [1997] 3 NZLR 529.

43 Ibid 562.

44 Ibid 562.

45 Ibid 549.

46 Ibid 587.

47 Ibid 553.

48 In Kostovski v Netherlands (1989) 12 EHRR 434, the European Court of Human Rights considered witness anonymity orders when the Dutch Code of Criminal Procedure did not expressly provide for witness anonymity orders. The Dutch trial court had admitted into evidence statements of an anonymous witness who had fears of reprisals. The European Court found that in all the circumstances of the case there had been a breach of the applicant’s right to a fair trial. A power to make witness anonymity orders was subsequently inserted into the Dutch Code of Criminal Procedure. Article 266a provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life, health, safety, family life or socio-economic existence and if the witness has made it clear that he does not wish to make any statement because of this.

49 In Doorsen v Netherlands one witness stated that s/he had suffered past injuries at the hands of another drug dealer and feared similar reprisals from the applicant. Another stated that he had in the past been threatened by drug dealers if he were to talk and that the applicant was aggressive. Material on police files indicated that if the witnesses’ identity were made known to the applicant there was a risk of threats being made. In all the circumstances the Court found that the applicant’s Convention rights had not been breached. In Van Mechelen v Netherlands the anonymous police witnesses had concerns for the safety of themselves, family and friends. The offences involved shootings at police. However, the Court found that the applicant’s right to a fair trial had been breached. In Visser v Netherlands (14 February 2002) the anonymous witnesses had fears for their safety. The accused had a reputation within the community for being a violent person and the offence of kidnap was rumoured to be a retaliatory act by the accused. The Court found that the applicant’s Convention rights had been breached and ordered the Netherlands to pay the applicant EUR 6,000 in respect of non-pecuniary damage.

50 The Court stated in Doorsen and repeated in Van Mechelen and Visser: ‘It is true that Article 6 [fair trial right] does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 [right to respect for private and family life] of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled.’

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