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Flatt, Christopher --- "McCaw Lewis Chapman Advocacy Contest" [1998] WkoLawRw 8; (1998) 6 Waikato Law Review 149

THE McCAW LEWIS CHAPMAN ADVOCACY CONTEST

IN THE COURT OF APPEAL DECISION IN R v HINES, SHOULD A WITNESS ANONYMITY RULE HAVE BEEN DEVELOPED WHICH DEPARTED FROM THE DECISION IN R v HUGHES?

BY CHRISTOPHER FLATT[*]

SUMMARY OF SUBMISSIONS OF COUNSEL FOR THE CROWN[1]

May it please your Honours, the submissions for the Crown are as follows:

1. Section 344C of the Crimes Act 1961 and section 16 of the Oaths and Declarations Act 1957 provide this Court with the discretion to allow anonymity to Witness A.

2. There is a substantive body of domestic and international law that supports the availability of witness anonymity once the court has established the credibility of the witness.

3. The development of witness anonymity rules are legal developments within the law of evidence and procedure and therefore providing anonymity for Witness A will not encroach upon the constitutional authority of Parliament.

SUBMISSION ONE

Section 344C of the Crimes Act 1961 and section 16 of the Oaths and Declarations Act 1957 provide this Court with the discretion to allow anonymity to Witness A.

Section 344C(3) of the Crimes Act 1961 allows a judge to make an order excusing the disclosure of an identification witness’s name and address to the defendant if the judge is satisfied that such an order “is necessary to protect the identification witness or any other person”. Detective Senior Sergeant Lyons, the police officer who undertook the inquiries into Witness A’s background and credibility, has openly admitted that the police will not be able to provide Witness A with adequate protection in the future. There is a growing trend by gang members to use violence to intimidate potential witnesses to prevent them from testifying in court. I refer to R v Coleman[2] and M v Attorney-General.[3] As a result of these cases and other publicly reported attacks, Witness A is understandably extremely afraid of retaliation if he does not receive witness anonymity when he delivers his evidence.

Anonymity under section 344C(3) is confined to identification witnesses, defined in section 344C(1) as a person who claims to have seen the offender in the circumstances of the offence. In this case, whilst peering through the slats of the portable toilet he was occupying, Witness A had a clear view of the stabbing and Mr Hines’ participation in it. Thus it is clear, as supported by Ellis J’s decision to grant a consent order excusing disclosure of his name prior to trial, that Witness A satisfied the requirments of section 344C(3). Section 344C(3) does not explicitly state when such an order cuts out. Section 344C(2) indicates that it relates to “any time after a person has been charged with an offence”. Therefore the provisions of the statute do not expressly prevent Witness A’s anonymity, under section 344C(3), from extending into the trial of Mr Hines.

This anonymity is further supported by the “Scots Form” oath as contained within section 16 of the Oaths and Declarations Act 1957. This section entitles every witness in any civil or criminal proceeding, if he or she so wishes, to take this oath instead of the oath usually administered to witnesses. The words of this oath are “I swear by Almighty God, as I shall answer to God at the great day of judgment, that I will speak the truth, the whole truth, and nothing but the truth”. Therefore section 16 allows Witness A to be officially sworn into court while still retaining his anonymity as provided for in section 344C of the Crimes Act 1961.

It is therefore submitted that the statutory authority as contained within both section 344C(3) of the Crimes Act 1961 and section 16 of the Oaths and Declarations Act 1957 do provide this Court with the discretion to allow anonymity to Witness A. Submission Two will now examine why this discretion should be extended to the present case.

SUBMISSION TWO

There is a substantive body of domestic and international common law that supports the availability of witness anonymity once the court has established the credibility of the witness.

R v Hughes[4] centred upon, but was not confined to, the anonymity of undercover police officers as witnesses. The right to confront an adverse witness was held to be basic to any civilised notion of a fair trial and therefore the Court of Appeal by a majority of three to two held that undercover police officers did have to reveal their true name and address when giving evidence. In response to this decision, Parliament rapidly introduced the Evidence Amendment Act 1986 which in essence overturned the R v Hughes decision by legislating for the anonymity of undercover police officers in cases involving specified crimes.

In Collector of Customs v Lawrence Publishing Co Ltd,[5] it was held that the Court of Appeal will ordinarily follow its earlier decisions but will be prepared to review and affirm, modify or overrule an earlier decision where it is satisfied that it should do so. It is submitted that R v Hughes is clearly a decision which should be modified or overruled, in so far as it still applies to witnesses other than undercover police officers.

Over the last decade there has been a gradual yet substantial movement away from the R v Hughes decision within the New Zealand common law relating to the availability of witness anonymity. In R v L,[6] the Court of Appeal held that a sworn statement of an alleged rape victim who had died after depositions, but before trial, could be proved in evidence even though the accused had taken no steps to seek or exercise a right of cross-examination at the depositions hearing. In R v L, Richardson J stated that the absence of an opportunity to cross-examine at the preliminary hearing would not affect the fairness of the ensuing trial.[7] It is submitted that, if the Court of Appeal declares that the absence of an opportunity to cross-examine a witness does not pose a threat to the fairness of a trial, clearly the anonymity of Witness A, a witness who has had his credibility endorsed by the police, can in no possible way pose a threat to the fairness of Mr Hines’ trial.

In R v Coleman,[8] Baragwanath J held that where the evidence is critical to whether the trial can take place and the court is satisfied that there is no substantial reason, following due inquiry, to doubt the credibility of a witness, then the court has the jurisdiction to permit anonymous evidence. As mentioned earlier, Detective Senior Sergeant Lyons has made substantial inquiries into the credibility of Witness A, as the police knew nothing about him before he came forward.

It has been ascertained that, apart from a drunk-driving conviction some 20 years ago, Witness A does not have a criminal record, he is not affiliated with any organisation, and he has sought no material benefit or gain from the police. Detective Senior Sergeant Lyons has stated that he is satisfied that Witness A is a genuine and honest citizen. The police have also stated that Witness A’s evidence is crucial to a successful conviction of Mr Hines. It therefore follows that, as a result of the decision in R v Coleman, this Court has the authority to extend witness anonymity to Witness A.

There has also been substantial development in the English common law relating to the availability of witness anonymity. In R v Watford Magistrates’ Court, ex parte Lenman,[9] a witness who was reluctant to testify due to fear of retaliation was permitted to give evidence anonymously. In R v Taylor,[10] the English Court of Appeal held that witness anonymity can be allowed at the discretion of the trial judge.

The Court in R v Taylor held there are certain relevant factors that must exist before judicial discretion can be exercised: that there are real grounds for being fearful of the consequences of giving non-anonymous evidence; that the evidence is sufficiently relevant and important to the prosecution’s case; that the court is satisfied as to the creditworthiness of the witness; and that the court is satisfied that no undue prejudice is caused to the defendant. As mentioned in the above submissions, Witness A and this trial satisfy these criteria. In R v Liverpool City Magistrates’ Court, ex parte Director of Public Prosecutions,[11] Beldam LJ and Smith J adopted a similar approach and endorsed the criteria of relevant factors contained in R v Taylor.

It is submitted that over the last decade the common law in both New Zealand and England has progressed down a different path from that of R v Hughes. Current precedent establishes that, once the credibility of a witness, the necessity of their evidence, and the absence of any injustice for the accused have been proven, courts are entitled to protect the anonymity of witnesses. It is submitted that the current case fulfils all these requirements and this Court is bound to protect the anonymity of Witness A by dismissing the appeal.

SUBMISSION THREE

The development of witness anonymity rules are legal developments within the law of evidence and procedure and, as such, providing anonymity for Witness A will not encroach upon the constitutional authority of Parliament.

R v Hughes contains clear statements of two conflicting views: one that the accused’s rights should be limited only by the legislature; the other that the evidence to be given and the manner in which it is given are matters singularly appropriate for determination by the courts, drawing upon trial experience and employing the flexibility of case-by-case consideration. In Myers v Director of Public Prosecutions,[12] Lord Reid stated that, if the courts are to extend the law, it must be for the development and application of fundamental principles; the court cannot introduce arbitrary conditions or limitations, which must be left to Parliament. Viscount Simmonds, in Shaw v Director of Public Prosecutions,[13] stated that in the area of criminal law there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State.

Allowing witness anonymity for Witness A will not result in the introduction of a new condition or limitation to the law, or even fashion a totally new common law rule. As submission two identifies, in both New Zealand and English jurisprudence, witness anonymity is a recognised principle which has been repeatedly applied over the last decade. As McMullin J stated in R v Hughes, the law of evidence is largely the development of case law which the courts, not Parliament, have had to evolve in many areas to balance competing interests.[14] In the same case, Cooke P stated that the question of witness anonymity falls within the fields of evidence and the inherent jurisdiction of courts, both of them fields in which the law is basically judge-made.[15]

Simply because the issue of witness anonymity is currently the focus of a Law Commission inquiry should not deter this Court from applying the law in the case of Witness A, for it is with Witness A and Mr Hines that this case is ultimately concerned. Though the Law Commission has expressed itself in favour of an anonymity rule, there is no assurance that any recommendations that might be made will find their way into the legislative programme. If there is injustice capable of being alleviated, even in the short term, this Court should not abdicate responsibility for addressing it.

It would be a travesty of justice for this Court to refuse to follow the current developments in the law relating to witness anonymity, merely because a Law Commission discussion paper is currently being circulated. It is submitted that Witness A should be allowed anonymity as the issue is clearly one relating to the law of criminal evidence and procedure, and will not encroach upon the constitutional authority of Parliament. This appeal should be dismissed.

In summary the submissions for the Crown are as follows:

1. That this Court is provided the discretion to allow witness anonymity to Witness A by both section 344C of the Crimes Act 1961 and section 16 of the Oaths and Declarations Act 1957.

2. Having established the credibility of Witness A, there is a substantive body of both domestic and international common law that supports the availability of witness anonymity for Witness A.

3. Providing witness anonymity for Witness A will not encroach upon the constitutional authority of Parliament as the development of witness anonymity rules are legal developments within the law of evidence and procedure.

[*] B Soc Sc (Hons) (Waikato); student LLB (Hons); winner of the 1998 McCaw Lewis Chapman Advocacy Contest and Dispute Resolution course prize.

[1] For the purposes of this contest, students were asked to imagine they were re-arguing for either counsel within the Court of Appeal case of R v Hines [1997] NZCA 123; [1997] 3 NZLR 529. As such the amendments introduced by the Evidence (Witness Anonymity) Amendment Act 1997 did not apply for the purposes of this contest.

[2] [1996] NZHC 1898; (1996) 14 CRNZ 258.

[3] Unreported, Court of Appeal, Wellington, CA 60/97, 29 May 1997.

[4] [1986] NZCA 56; [1986] 2 NZLR 129.

[5] [1986] 1 NZLR 404, 414.

[6] [1993] NZCA 553; [1994] 2 NZLR 54.

[7] At 63.

[8] [1996] NZHC 1898; (1996) 14 CRNZ 258.

[9] [1993] Crim LR 388 (Queen's Bench Divisional Court).

[10] [1994] Times LR 484; [1995] Crim LR 253.

[11] Queen's Bench Division, CO 1148/96, 19 July 1996.

[12] [1965] AC 1001, 1021-1022.

[13] [1961] UKHL 1; [1962] AC 220, 267.

[14] At 153.

[15] At 135.