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Evidence Bill (Consistent) (Sections 23, 25, 29) [2005] NZBORARp 10 (5 April 2005)
Last Updated: 15 September 2020
Evidence Bill
5 April 2005
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
EVIDENCE BILL Our Ref: ATT114/1298(13)
- 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
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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).
- 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.
- 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]
- 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]
- 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.
- 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
- 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.
- A
number of other provisions in the Bill impose similar obligations on a defendant
to give notice of evidence he/she intends to call.
- 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
- 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.
- 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.
- 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.
- 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 (4th) 193, 258, 278C,
per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to
have no place in our legal system.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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]
- 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.
- 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....
- 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.
- 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
- 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.
- 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.
- 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.
- 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?
- 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).
- 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.
- 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]
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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]
- 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.
- 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.
- As
noted above, the privilege against self-incrimination is partially incorporated
in s23(4), s25(d) and, arguably, s25(a) of the
BORA.
- Clearly,
section 23(4) cannot apply to a body corporate as a body corporate cannot be
arrested or detained.
- 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).
- 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]
- 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.
- 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.
- 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
- 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.
- The
provision represents a relaxing of the present common law rule on the
inadmissibility of evidence of jury room deliberations.
- 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.
- 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.
- 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
- Clause
91 imposes restrictions upon the cross-examination of child witnesses and
complainants by the accused personally.
- 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.
- 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?
- 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]
- 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)
- 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.
- 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.
- 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.
- 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]
- 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.
- 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.
- Taking
all of these factors into account, the provisions do not breach the rights in
s25.
Alternative modes of giving evidence
- 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]
- 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
- 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
- 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).
- 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
- 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.
- 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.
- 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.
- 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."
- 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.
- 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.
- 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.
- The
current provisions of the Evidence Act were considered by the Court of
Appeal in R v Atkins [2000] NZCA 9; [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.
- 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’
- 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.
- ‘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.
- 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.
- 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]
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- The
restrictions on freedom of expression contained in the bill are clearly
justified.
Yours faithfully
Joanna Davidson Crown Counsel
|
Footnotes
1 R v L [1993] NZCA 553; [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 [1989] ECHR 20; (1990) 12
EHRR 434; Unterpertinger v Austria (1991) 13 EHRR 175; Delta v France
(1993) 16 EHRR 574; Saidi v France [1993] ECHR 39; (1993) 17 EHRR 251; Doorsen v
Netherlands [1996] ECHR 14; (1996) 22 EHRR 330; Van Mechelen v Netherlands [1997] ECHR 22; (1998) 25
EHRR 647.
4 [2001] UKHL 25; [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] ECHR 7; (1993) 16 EHRR 297.
18 See Saunders v United Kingdom [1996] ECHR 65; (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 [1996] ECHR 65; (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
(4th) 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] UKHL 2; [2004] 1 AC
1118.
31 Gregrory v UK [1997] ECHR 22299/93; Sander v UK
[2000] ECHR 194; (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 [1992] ECHR 60; (1993) 16 EHRR 135 and
Imbroscia v Switzerland [1993] ECHR 56; (1994) 17 EHRR 441 Croissant v Germany
[1992] ECHR 60; (1993) 16 EHRR 135 and Imbroscia v Switzerland [1993] ECHR 56; (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] NZCA 123; [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] NZCA 123; [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] ECHR 20; (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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