Report No. 198
(c) New Zealand:
In their commentary on New Zealand Bill of Rights, authors Paul Rishworth, et al (Oxford Univ Press, 2003) state (p. 697):
"The traditional requirement that witnesses testify in the Courtroom and in sight of the accused has been modified both by statute and by the exercise of a trial Judge's inherent jurisdiction at common law"
But, the law in New Zealand, initially was the other way, the courts taking the view that it was for the legislature and not for the courts to create exceptions to the principle of open justice. In respect of undercover police officers, Richardson J stated in R v. Hughes: 1986 (2) NZLR 129 (CA) that any relaxation would be a 'slippery slope' and the right to open trial would be 'emasculated' as held by the US Supreme Court in Smith v. Illinois: (1968) 390 US 129. But the minority judgment delivered by Cook P and Mc Mullen JJ took the opposite view and based it on the 'inherent jurisdiction' of the Court.
The legislature, in deference to the views of the minority introduced section 13A into the New Zealand Evidence Act, 1908 by section 2 of the Evidence (Amendment) Act, 1986 giving powers to the Courts in two types of case.- those involving drug offences under the Misuse of Drugs Act 89(1975) (exceptions 7 and 13) and offences tried on indictment where sentence could be more than 7 years imprisonment.
When the question of witnesses other than police informers came up in R v. Coleman and others (1990) 14 CRNZ (2002) 258, Bargavanath J followed the spirit of the 1986 Amendment, in a pre-trial decision, following the UK cases in R v. DJX, CCY, GGZ (1990) 91 Cr. App Rep 36 and R v. Watford Magistrates ex-parte Lehman (1993) Crl LR 253. In Coleman's case, at the time of trial, Robertson J followed Bargawanath J. But thereafter, in R v. Hines: (1997) 15 CRNZ 158, the Court of Appeal refused to relax the view it took earlier in R v. Hughes and stated that it was for the legislature and not for the Courts. Gault and Thomas JJ dissented and observed that the right to grant anonymity was part of the 'inherent power' of the Courts.
Meanwhile, the New Zealand Bill of Rights, 1990 came in stating in section 25(f) about the right of cross-examination is a 'basic right'. Art. 25(f) refers to:
"The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution"
In a rape case, the Court of Appeal clarified in R v. L (1994) (2) NZLR 54 that the right to cross-examination was not absolute and an earlier deposition of the rape victim (who died) could be put against the accused.
In order to resolve the problem created by R v. Hines, the Legislature enacted ss. 13B to 13J into the Evidence Act, 1908 by the Evidence (Witness Anonymity) Amendment Act, 1997 making the protection applicable to all witnesses whose lives were 'likely' to be endangered.
After the amendment of 1997 in R v. Atkins 2000 (2) NZLR 46 (CA), the provision of the ss. 13B to 13J introduced in 1997 came up for consideration and the provisions of the Amendment were explained. We have referred extensively to this judgment in para 6.4.7 of the Consultation Paper. This is the position in New Zealand.
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