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Courts (Remote Participation) Bill (Consistent) (Sections 23(3), 24(c), 25, 27(1)) [2009] NZBORARp 75 (27 November 2009)

Last Updated: 28 April 2020

Courts (Remote Participation) Bill

27 November 2009

ATTORNEY-GENERAL

Courts (Remote Participation) Bill (PCO 13857/5.2): Consistency with the New Zealand Bill of

Rights Act 1990

Our Ref: ATT395/110

1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990.

I conclude that while the use of audio-visual links (“AVL”) for court proceedings must be reconciled with fair trial and related rights affirmed by that Act, the safeguards provided by the Bill ensure that those rights are not breached.

Analysis

2. The Bill provides for appearance by way of AVL by any participant in civil or criminal proceedings, including the judicial officer, counsel, witnesses and, respectively, the parties or the accused/defendant.

3. The right to be present, which is interpreted usually to entail physical presence, [1] before the courts is considered a fundamental safeguard against unfairness or other error in court proceedings. [2] In respect of criminal proceedings, the right is reflected in the specific protections of the rights to be brought before a court

following arrest, to instruct counsel, to fair trial, to be present at trial and to examine

witnesses on an equal basis to the prosecution under ss 23(3), 24(c), 25(a), 25(e) and

25(f) of the Bill of Rights Act. In civil proceedings, the right to be present arises as an incident of natural justice, as affirmed by s 27(1).

4. The consistency of AVL with these protections is essentially a question of whether, in the circumstances, the inherent differences between physical presence and appearance by AVL has an unacceptable effect on the conduct of proceedings. Notably, the Court of Appeal has held that the giving of evidence in a criminal trial by AVL is not of itself incompatible with fair trial protections, but that such use must be subject to consideration of any potential effect on trial fairness. [3] Other jurisdictions vary in the circumstances in which AVL evidence will, or will not, be permissible. [4]

5. The use of AVL for the appearance of an accused person at trial appears to be

uncommon in comparable jurisdictions, at least without the accused person’s consent, and does not appear to have been considered in New Zealand. The European Court of Human Rights has, however, indicated that whether such appearance is consistent with fair trial protections will depend upon the particular circumstances, including the stage of proceedings, possible disadvantage to either party and measures taken to ensure effective participation and confidential communication with counsel. [5]

6. The safeguards provided by the Bill are consistent with these considerations:

6.1 In civil proceedings, use of AVL may occur only with consent of all parties (cl

7(1)) or after consideration of range of factors including “the potential impact of the

use of the technology on the effective maintenance of the rights of other parties” (cl

5(c)); and

6.2 In criminal proceedings, use of AVL may only occur after consideration of the “potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing”, together with further and more specific considerations (cl 6).

7. In light of those mandatory considerations and the obligation, under s 6 of the Bill of Rights Act, to interpret these provisions consistently with fair trial rights, I consider that the Bill sufficiently safeguards the rights in issue and that no inconsistency arises.

8. In accordance with Crown Law practice, this advice has been peer reviewed by Ben Keith, Crown Counsel. Greg Robins, Assistant Crown Counsel, has also assisted in the preparation of this advice.

Yours sincerely

Jane Foster

Associate Crown Counsel

Footnotes:

1. See Connelly v R [1998] 3 NZLR 763.

2. See, for example, Jones v R [2002] EWCA Crim 2949; [2003] 1 AC 1, [8] “a matter of capital importance” and J Robertson (ed) & ors Adams on Criminal Law (Thomson: Looseleaf to 2009) 10.19.02(1) “... a fundamental right which was well reflected in law before the enactment of the Bill of Rights”.

3. Accused v Attorney-General (1997) 15 CRNZ 148, 153-154, holding such use for safety of witnesses within the jurisdiction of the court, but noting that “consequences possibly flowing from the absence of a witness from the actual courtroom may well go to the proper exercise of any discretionary powers in a given situation”; see in respect of civil matters, for example, Deutsche Finance New Zealand Ltd v Commissioner of Inland Revenue (2007) 18

PRNZ 710, [18]-[23] (video link evidence generally unproblematic, but may be of less weight).

4. See R v Camberwell Green Youth Court [2005] 1 WLR 393 (HL), [46] and [68] (giving of evidence by video link not generally inconsistent with fair trial rights, but discretion

necessary given potential for disadvantage to defendant); Donnelly v Ireland [1998] 1 IR 321 (Supreme Court of Ireland), 357 (right to examine witnesses does not require physical presence and can be satisfied by video link) and Maryland v Craig [1990] USSC 130; 497 US 836 (1990) (United States Supreme Court), 850 (witness must be physically present absent case-specific finding that departure necessary for important reasons of public policy).

5. See, for example, Marcello Viola v. Italy, [2006] ECHR no. 45106/04, [75] and Shulepov v Russia [2008] ECHR no. 15435/03, [35]; see, similarly, Prosecutor v Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecutor’s Appeal against Decision on Referral under Rule 11bis, 9 October 2008 (Appeals Chamber, International Criminal Tribunal for Rwanda) [33] (direct evidence preferable and appearance of prosecution witnesses in person and defence witnesses by video link contrary to equality of arms).

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Courts (Remote Participation) Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect

of this or any other matter.