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Report No. 198

Richardson J speaking for the majority, stated as follows:

"We would be on a slippery slope as a society if, on a supposed balancing of the interests of the State against those of the individual accused, the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial.

Today the claim is that the name of the witness need not be given; tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example, from behind a screen, in which case, his demeanour could not be observed, or by removing the accused from the Court, or both.

The right to confront an adverse witness is basic to any civilized section of a fair trial. That must include the right for the defence to ascertain the true identity of an accused where question of credibility may be an issue."

The minority (Cook P and Mc Mullen J), however, held that the Court did have the power to grant anonymity in exercise of its inherent jurisdiction and should do so. The identity of an undercover officer should not be disclosed to the defence, unless the Judge was satisfied that it was of such relevance to the facts in issue that to withhold it would be contrary to the interests of justice.

The officer could give a cover name, the question of the officer's true identity may be brought up in cross-examination by the defence. It would then be for the prosecution to show that there was a legitimate reason for withholding the officer's true identity, such as, fear of violence. If this were shown, then it would be for the defence to justify the need for disclosure on the basis that to withhold it would be contrary to 'the interests of justice'.

As to what would amount to justification, Cook P speaking for the minority, stated that:

"the defence should have to satisfy the Judge of no more than that the truth of the evidence of the undercover officer on a material matter of fact is genuinely in issue on substantial grounds; and that there accordingly arises a serious question as to the officer's credibility upon which it might be helpful to the defence to have his true name. To show this, it should not be enough merely to say that the officer's account is not admitted or denied. An alternative account would have to be before the Court."

The Judge's function, according to the minority view of Cooke P, is not to determine whether or not the witness is truthful, but is limited to deciding whether there is some substantial ground for questioning the undercover officer's credibility. In case the Judge is not satisfied about the credibility of the witness on the question of the danger to the safety of the witness, the Judge must direct the prosecution to disclose the witness's identity, despite the potential danger to the witness.

6.4.2 Accepting the view of the minority in this Judgment of 1986, the New Zealand Parliament introduced section 13A in the Evidence Act, 1908 by section 2 of the Evidence (Amendment) Act, 1986. That section was confined to the case of "undercover" police officers and permits undercover police officers to merely state their cover name in the Court if the specified procedures are complied with. They do not need to state their true name or address, nor to give particulars likely to lead to the discovery of their true identity, unless the Court grants the defence leave to question them on these matters.

The classes of cases where such protection is available to undercover officers are set out in section 13A(1) of the Evidence Act, 1908 as follows, namely, in cases:

(1) involving certain drug offences under the Misuse of Drugs Act, 1975 (except sections 7 and 13); or

(2) involving any offence tried on indictment which attracts a maximum penalty of at least 7 years imprisonment.

It is also available in cases of alleged conspiracy to commit or for attempting to commit these offences (section 13A(1)(c)). According to prescribed procedure laid down in section 13A(3), a certificate has to be given to the Court by the Commissioner of Police certifying, among other things, that the officer has not been convicted of any offence (including any offences under the Police Act, 1958). The certificate must also give notice of any occasion when the credibility of the officer has been subject to adverse comment (section 13A(4)).

Once such a certificate is lodged in the Court, a Judge under section 13A (7), will grant leave for the witness to be questioned about his or her true identity only if he is satisfied,

(a) that there is some evidence before the Judge that, if believed by the Jury, could call into question the credibility of the witness; and

(b) that it is necessary in the interest of justice that the accused be enabled to test properly the credibility of the witness; or

(c) that it would be impracticable for the accused to test properly the credibility of the witness if the accused were not informed of the true name or the true address of the witness.

6.4.3 The Act of 1986 was soon found insufficient as it was applicable only to "undercover" officers, and therefore cases of other witnesses again came up before the Courts between 1986 and 1997.

The case in R v. Hughes 1986(2) NZLR 129, referred to above, was not accepted in R v. Coleman and Others (1996) 14 CRNZ 258. In this latter case, the Court followed the spirit of the 1986 statute and was in favour of grant of anonymity by the Court under its inherent powers even the case of other witnesses. Baragwanath J, in a pre-trial decision, followed the English decisions (R v. DJX, CCY, GGZ (1990) 91 Cr. App Rep 36, R v. Watford Magistrates ex p Lenman 1992 (1993) Crl L R 253) and granted orders of anonymity. The witness's identity was to be withheld from the defence and the witness be screened and the Court cleared of the public. He held that:

(1) the evidence was critical to whether the trial can take place at all;

(2) there is no substantial reason to doubt the credibility of the witness (as to the fear expressed by him);

(3) justice can be done to the accused by the issue of suitable directions; and

(4) the public interest in the case proceeding to trial outweighed the disadvantages of that course.

An appeal against the interlocutory order before the trial was dismissed on jurisdictional grounds under section 379A of Crimes Act, 1961. When the aforesaid case in Coleman went finally to trial, Robertson J too followed Bargawnath J's pre-trial judgment rather than R v. Hughes.

6.4.4 In 1997 when another case R v. Hines (1997) 15 CRNZ 158 came up before the Court of Appeal, the majority, notwithstanding the liberal attitude of the Legislature in 1986 in protecting under cover police officers, unfortunately reaffirmed R v. Hughes and reiterated the view against granting anonymity to other witnesses, stating again that it was a matter for Parliament to make a balancing act between the right of the victim and that of the accused.

But Gault J, in the minority, observed that in the interests of the community, anonymity be granted and that the 'absolute rule' as in Hughes was 'merely an invitation for intimidation of witnesses'. Thomas J agreed with him. These two learned Judges upheld the inherent power of the Court to grant anonymity unless the witness's credibility was 'reasonably in issue'. They however observed that the witness's fear must also be 'reasonable and justified' and the Court must be satisfied that anonymity will not deprive the accused of a fair trial. This preliminary issue, according to them, was likely to require a 'voir dire' proceeding..

In the meantime in 1990, the New Zealand Bill of Rights gave right of cross examination as a basic right, and since then there have been several applications before the Courts but there has been no consistency in the judgments of the High Court.

R v. L (1994)(2) NZLR 54 (CA) came up for consideration before the Court of Appeal in 1997 and had to be tested on the anvil of section 25(f) of the NZ Bill of Rights. The Court of Appeal upheld the admission at trial of a written statement, produced as a deposition, of a rape complainant who had committed suicide after a preliminary hearing (at which she had not testified). The Court stated that the right of cross examination was not absolute.

6.4.5 The legislature, therefore, felt compelled to step in again and introduced sections 13B to 13J into the Evidence Act, 1908 by the Evidence (Witness Anonymity) Amendment Act, 1997, making protection applicable to all witnesses if their lives were "likely" to be endangered and laying down a detailed procedure for the Court to follow.

As to the right of cross-examination, this was part of the right to minimum standards as stated in sub-clauses (a) and (f) of section 25 of the NZ Bill of Rights Act, 1990 which were based on the International Covenant on Civil and Political Rights. Section 25(f) included the right to examine the witness for the prosecution and to obtain his attendance and examination for the defence under the same conditions as the prosecution.

6.4.6 It is necessary to refer to the provisions of sections 13B and 13C introduced in 1997 in the Evidence Act, 1908. section 13B enables exclusion of identification of the witness before trial, by the District Judge or a High Court Judge or a Judge referred to in the Children, Young Persons and their Families Act, 1989. Under section 13C, anonymity order can be passed by the High Court.

After committal, section 13C(2) permits the prosecution to apply to the High Court for an anonymity order, which will be decided in chambers, after hearing both sides. Under section 13C(3)(b), neither the party supporting the application nor the witness need reveal any information that might disclose the identity of the witness to any person (other than the Judge) before the application is dealt with. The Judge may, under section 13C (4) make an anonymity order, if he is satisfied that

"(a) the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to the property, if the witness's identity is disclosed; and

(b) either

(i) there is no reason to believe that the witness has a motive or tendency to be untruthful having regard (where applicable) to the witness's previous conviction or the witness's relationship with the accused or any associates of the accused; or

(ii) the witness's credibility can be tested properly without the disclosure of the witness's identity; and

(c) the making of the order would not deprive the accused of a fair trial."

It is also necessary to refer to subsection (5) of section 13C with regard to the factors to be taken into account and the procedure to be followed by the Court. Subsection (6) of section 13C refers to the effect of the order. These subsections read as follows:

"(5) Without limiting subsection (4), in considering the application, the Judge must have regard t.-

(a) the general right of an accused to know the identity of witness;

(b) the principle that witness anonymity orders are justified only in exceptional circumstances;

(c) the gravity of the offence;

(d) the importance of the witness's evidence to the case of the party who wishes to call the witness;

(e) whether it is practical for the witness to be protected by any means other than an anonymity order; and

(f) whether there is other evidence which corroborates the witness's evidence.

(6) If a witness anonymity order is made under this section,-

(a) the party who applied for the order must give the Judge the name, address, and occupation of the witness; and

(b) the witness may not be required to state in Court his or her name, address, or occupation; and

(c) during the course of the trial, no counsel, solicitor, officer of the Court, or other person involved in the proceeding may disclose

(i) The name, address, or occupation of the witness; or

(ii) Except with leave of the Judge, any other particulars likely to lead to the witness's identification; and

(d) during the course of the trial,-

(i) no oral evidence may be given, and no question may be put to any witness, if the evidence in question relates to the name, address, or occupation of the witness who is subject to the order;

(ii) except with leave of the Judge, no oral evidence may be given, and no question may be put to any witness, if the evidence or question relates to any other particular likely to lead to the identification of the witness who is subject to the order; and

(e) no person may publish, in any report or account relating to the proceeding, the name, address or occupation of the witness, or any particulars likely to lead to the witness's identification."

We may add that procedure under section13B for the District Court is almost identical with procedure under section13C for the High Court.

Section 13G is very important as it provides for clearing the public from the Court or to direct screening and allow the witness to give evidence by close-circuit television or by video-link. It also deals with appointment of an 'independent counsel' to assist the Court.

"13G. Judge may make orders and give directions to preserve anonymity of witnes.- (1) A Judge who makes an order under section 13B or section 13C may, for the purposes of the preliminary hearing or trial (as the case may be), also make such orders and give such direction as the Judge considers necessary to preserve the anonymity of the witness, including (without limitation) one or more of the following directions:

(a) That the Court be cleared of members of the public;

(b) That the witness be screened from the defendant;

(c) That the witness give evidence by close-circuit television or by video-link.

(2) In considering whether to give directions concerning the mode in which the witness is to give his or her evidence at the preliminary hearing or trial, the Judge must have regard to the need to protect the witness while at the same time ensuring a fair hearing for the defendant.

(3) The section does not limi.-

(a) Section 206 of the Summary Proceedings Act, 1957 (which confers powers to deal with Contempt of Court); or

(b) Section 138 of the Criminal Justice Act, 1985 (which confers power to clear the Court); or

(c) Any power of the Court to direct that evidence be given, or to permit evidence to be given by a particular mode."

For purposes of section 13G above mentioned, a Judge may, under section13E, appoint an independent counsel to assist the Court; or issue directions to a Jury as may be required (section 13F) and orders may be varied or discharged before the witness gives evidence (section 13H).

After section 13H, two places below, namely, section 13I deals with witness in "police protection programme" and section 13J enables conviction for 7 years if a person who has knowledge of a pre-trial witness anonymity order under section 13C contravenes para (c) or (e) of subsection 6 of section 13C; may be imposed if para (b) or (d) is violated; if para (c) or (e) is violated and not section 13C(1), then fine may be imposed without prejudice to punish for contempt.

6.4.7 R v. Atkins: 2000 (2) NZLR 46 (CA)

The Amending Act of 1997, introducing sections 13B to 13J, and in particular, section 13(C)(4)(a) came up for consideration recently in R v. Atkins: (2000)(2) NZLR 46 (CA) before the New Zealand Court of Appeal. The case is very important and is a landmark in this branch of the law and we shall refer to it in some detail. We may recall that section 13(C)(4)(a) refers to the satisfaction of Court that:

"the safety of the witness or other person is likely to be endangered or there is likely to be serious damage to the property, if the witness identity is disclosed."

(This case involved video-link and distortion of voice of witnesses.)

In Atkins, the High Court passed witness anonymity orders and these were questioned by the two accused in an application for leave to appeal before the New Zealand Court of Appeal. Four of the accused had been committed for trial on a charge of murder arising out of an assault in the carpark of a Hotel in the night and all were members or associates of the Crisborne Mongel Mob, playing in a rugby team. The assault was witnessed by 100 people at the carpark out of which 11 agreed to give evidence but only on condition of anonymity. The police obtained pre-trial orders under section 13B for all the 11 witnesses prior to the hearing of evidence but six of them dropped out.

6.4.8 The procedures adopted in the case required use of two separate video images in the Courtroom, one that could only be seen by the Judge and Jury and the other that could be seen by everyone else concerned with the trial. The witnesses were testifying from video-link from undisclosed locations with their voices distorted for the Judge and Jury, and their voices and images distorted for all others in the Courtroom including the accused and his counsel. The NZ Court of Appeal interpreted the word "likely" in section 13C(4)(a). The Court in Atkins observed:

"In its context, the word 'likely' bears a common meanin.- a real risk that the event may happe.- a distinct or significant possibility. As Cook P observed in Commissioner of Police v. Ombudsman 1988 (1) NZLR 385 (391) in construing the Official Information Act, 1982 which protected information 'likely to prejudice a fair trial': to require a threat to be established as more likely to eventuate than not, would be unreal.

It must be enough if there is a serious or real and substantial risk to a protected interest, a risk that might well eventuate. This Court has given 'likely' that sense in a line of criminal cases, a recent example of which is R v. Piri (1987) 1 NZLR 66. It is a test familiar in other branches of the law also (see for instance the House of Lords case R v. Secretary of State for the Home Department, ex parte Sivakumaran 1988(1) All ER 193).

There is no cause to read the word "otherwise" in the present context. It is the existence, in a real sense, of danger to safety (or serious damage) which can, not will, give rise to an order. What is being considered is a threshold, one which is directed to persons who, as part of their civic duty, are being required to take part in the Court process, and their personal safety, or the well-being of their property, which may be affected by reason of their participation".

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