Report No. 198
Further, in Atkins, the New Zealand Court of Appeal continued:
"As Lord Woolf went on to observe, where what is at stake is the safety of (there) of the former soldiers and their families, the risk is extremely significant. So too, in the case of witnesses to a serious crime, whether a Court is satisfied such a risk exists must be a matter of judgment".
Coming to the facts of the case before them, in Atkins, the Court of Appeal then considered the affidavits supplied by the five witnesses and of the Detective Sergeant. As to the admissibility of the affidavits of the witnesses on the basis of which they sought anonymity, the Court of Appeal laid down very important tests. It said:
"We are mindful of the fact that the matters deposed to have not been tested by the cross-examination and that there has been no opportunity to present contradicting evidence in respect of the nondisclosed assertions. But in applications of this nature, the Court will necessarily be called upon to consider untested evidence, and to evaluate evidence some of which could be classed as hearsay. We accept Mr. Calver's submission that in such an exercise, care must be taken in making the evaluation and in drawing conclusions, and is to be exceptional.
But we do not accept the proposition that unless the evidence was sufficient to warrant prosecution for a normal offence, it should not be acted upon. The weight to be given to any particular assertion will depend upon many differing factors, including source, reliability, and the existence or absence of supporting material. This aspect was dealt with admirably by Young J in his judgment on a section 13-C application in R v. Dunnil: 1998(2) NZLR 341. at 347
[In Dunnil, the Judge had held that screens and video-links are 'very much commonplace' today in Courts].
The Court of Appeal in Atkins then recorded a finding that there was enough material from the affidavit.- though was not subjected to crossexaminatio.- to say that there was likelihood of the lives of the five witnesses being endangered, requiring an anonymity order as passed by the Court below.
Yet another important aspect of the Judgment in Atkins is that the Court of Appeal dealt with the meaning of the words "fair hearing for the defendant" used in subsection (2) of section 13G, and the words 'fair trial' used in section 24(a) of the NZ Bill of Rights Act, 1990. It explained:
"The issue is whether despite implementation of those restrictions, the Court is satisfied, in so far as it can be at this point of time, that a fair trial will result. The starting point must be the legislation's recognition that ensuring the anonymity of witness does not necessarily negate the concept of a fair tria.- and that must be so. section 13A which enables protection of the identity of undercover police officers is an example. There have been no serious contentions that these provisions infringe section 24(a) of the New Zealand Bill of Rights Act, 1990.
What is at issue in this respect is an inroad into generally accepted trial processes, something which has occurred from time to time over the years but without infringing the basic concept of a fair trial. In each case, it is therefore, necessary to examine the effect of the particular orders. It can also be noted that the Court has power under para (7) to give leave to ask questions which may otherwise infringe the subsec (6) order. In some circumstances, the order may be revoked under section 13H in advance of the giving evidence. That would probably require some significant change in circumstances from those initially prescribed."
The Court of Appeal in Atkins summarized the contentions for the accused as to the disadvantages which an accused suffers in the case of anonymity orders, as follows:
"They concern the inability to test the credibility and reliability of the witnesses, and relate to: (a) restrictions on ascertaining the precise positioning of the witnesses when observing the incidents deposed to;
(b) examining the witness adequately as to possible mistake, motive for untruthfulness or, partiality; (c) testing the witness's physical and mental condition at the time; and (d) the effect of the picture and voice distortions."
In respect of the above contention raised on behalf of the accused, the Court further observed that this was not a case where parties invoked section 13E for independent assistance by a counsel, nor was it invoked by the Court below. It is also to be seen that the
"terms of order under subsection (6) of section 13C do not expressly prohibit questions other than those which can properly be said are likely to lead to identification of the witnes.- that there is a real or substantial risk of that resulting (in identification). Secondly, the trial Judge has a residual power to allow such questions, which would be exercised having regard to all the circumstances including the relative substantiality of the risk and the importance of the particular question.
These are very much matters of judicial control at trial. Thirdly, as the Judge in this case observed the refusal of a witness to give details pertinent and significant to the reliability of his or her evidence will obviously be uppermost in the minds of the jury, and the quality thereof probably substantially diminished. The point however remains one which must be given the due weight in the overall equation."
The Court of Appeal also observed that the fact that an anonymity order has been passed accepting the fears expressed by the witnesses, should be a matter which could go against the character of the accused in the matter of deciding his role in the (alleged) commission of the offence.
The said Court observed that the overall discretion given to the Court under section 13C(4) was subject to subsection (a), (b) and (c) and also to subsection (5) some of which may infringe on subsection (4)(b) and (c) considerations. Even if subsection (4) criteria are established, the Court must still stand back and ask whether the orders should, in the overall interest of justice, be made. But 13C orders are, it must be understood, not to be passed as a matter of routine. They are not like gang related offences. The power is to be used sparingl.- The exceptional circumstances may arise out of single incident or out of the cumulative result of witnesses.
On the basis of the above discussion, the Court of Appeal dismissed the appeals of the accused.
5.4.9 Summarizing the position in New Zealand Courts, it will be seen that initially there was the view that the Court should not exercise inherent powers to pass anonymity orders but that the legislature alone should provide guidelines. However, the legislature stepped in and carried out amendments first in regard to "undercover" police officers in 1986 and later more generally in 1997 to cover all witnesses whose life is "likely" to be endangered.
The legislation of 1997 is very comprehensive and was interpreted in latter cases thoroughly, where the witnesses had deposed from another place through video-link, their voice not being distorted for the Judge and Jury while their voice and images were both distorted for all others including the accused and his counsel. The procedure was held to be 'fair' within the New Zealand Bill of Rights.
In Canada, the broad principle laid down by the Supreme Court is that anonymity may not be granted to the witnesses under inherent powers unless the Court considers that, on the facts, 'innocence would be at stake'. Anonymity was a privilege granted under the common law unless there was material that it would jeopardize proof of innocence of the accused.
6.5.1 It however appears that in Canada, the Courts have generally granted more importance to the exception of 'innocence at stake' rather than the needs of the 'administration of justice' in giving anonymity to witnesses.
6.5.2 R v. Durette: 1994(1) SCR 469
The accused were charged with offences involving conspiracy of trafficking in controlled drugs and narcotics. A substantial part of the evidence against them consisted of recordings of telephone conversations intercepted pursuant to nine authorizations by the Court. The trial Judge edited the affidavits filed by the officers of the State to secure authorizations for interception "in so far as (they) contain information from informants and others which is to be protected and in so far as they contain summary or opinions'.
The issue before the Supreme Court, after the convictions, was whether the trial Judge's editing of the affidavits prevented a proper and full inquiry into the validity of the authorizations, thereby depriving the accused of the right to make full answer and defence as guaranteed by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
The Supreme Court (by majority) allowed the appeals and ordered a new trial, holding that to justify non-disclosure of information, the Crown must show that disclosure will prejudice the interests of informants, innocent persons or law enforcement authorities and that such prejudice overbears the interests of the accused.
When non-disclosure is justified, the affidavits should only be edited to the extent necessary to protect these overriding public interests. Here the editing by the Judge of the affidavits was more than could be legally justified by the decisions in R v. Parmar (1987) 34 (CC(3d) 260 and R v. Garfoli: 1990(2) SCR 1421; editing should have been kept at the minimum to the extent needed to maintain confidentiality. It was held that the screening held back information from the affidavits which was not confidential.
6.5.3 In R v. Khela: 1995 (4)SCR 201
In this case, the Canadian Supreme Court had to deal with the case of disclosure of the identity of a police informer and the right of the accused for cross-examination. The position under section 24(1) of the Canadian Charter of Rights and Freedom was also in issue. The question was whether the denial of cross-examination of a person in the position of an 'approver' was justified and further about the validity of his subsequent production for limited cross-examination when he wore a 'hood', to ensure his safety. The Supreme Court finally held that if there was danger to the person's life, his name and address need not be disclosed till just before the trial.
The facts were that in 1986, the appellants (accused) Santokh Singh Khela and Dhillon, were charged with conspiracy to commit murder of persons on board of an aircraft in the US by placing a bomb on the plane. They were arrested in May 1986 and they waived their right to a preliminary inquiry.
At the first trial in 1986, they were found guilty and sentenced to life imprisonment. According to the accused, an amount of $ 8000 out of agreed sum of $ 20,000 was paid by them to buy a stolen car and import it into the US and the payment was not in connection with the conspiracy to blow up the air-craft as alleged by the Crown. They were not permitted to call the particular person (who was not a police officer) who was the informant to the police, (something like an 'approver'), for crossexamination.
The Crown had not provided them the details of the actual name and address of the informant. The appellant's appeal against conviction was allowed (see (1991) 68. CCC(3d) p 81) by the Court of Appeal and a fresh trial was ordered holding that the trial Judge erred in not ordering, as requested by the appellant, (1) the Crown to disclose (a) the evidence of the informer before the trial; (b) the full name and whereabouts of the informant and (2) that the informant be produced for crossexamination.
The Crown agreed to make the person available but said that the questioning would be restricted to specific matters, namely, payment of $8,000 and meeting with the 'explosives expert' and that the interview with the informant could neither be taped nor could a case reporter be present. The counsel for defence met the informant and the Crown Office and the person was wearing a 'hood' over his head and was flanked by two large bodyguards.
The informant refused to respond to questions in English and was speaking French even though at the first trial, evidence showed he was fluent in English. Defence Counsel, therefore, doubted the identity of the person produced and the interview was aborted without any question having been asked. The Crown did not provide the defence with the name, address or any other identifying feature of the person.
At the opening of the second trial and before the jury were chosen, the appellants made two applications under section 24(1) of the Canadian Charter of Rights and Freedoms, contending that
(a) the Crown had failed to disclose to the defence essential and relevant evidence as required by the judgment of the Court of Appeal;
(b) The Crown violated the rights of the accused to be tried within a reasonable time.
The Crown once again maintained that, notwithstanding the earlier directions of the Court of Appeal, it was not obliged to make disclosure of the name and whereabouts of the person or make him available because, according to it, the earlier judgment of the Court of Appeal did not contain a specific direction to that effect.
In the Court of Appeal, Steinberg J held that the appellant's rights under sections 7 and 11(b) of the Charter had been infringed and granted stay of proceedings.
When the matter reached the Supreme Court at the instance of the Crown, it was held that, on the facts of the case, it was obligatory for the Crown to furnish the identity and address of the informant in view of the first order of the Court of Appeal while remanding the matter. Failure to disclose could impair the rights of the accused under section 7 of the Charter. But there was no power in the Court of Appeal to redirect production of the informant who was not in the control of the Crown.
The obligation of the Crown did not extend to producing its witnesses for furthering discovery. There was no reason for a fresh remand as directed by the Court of Appeal, but the Crown should be given an opportunity to comply with the direction to disclose the name and whereabouts of the persons or to seek modification of the order if they had material to say that the life of the informant would be endangered.
The Supreme Court, therefore, allowed the appeal, set aside the order of the Court of Appeal and issued the following direction to the trial Court. This direction would be subject to variation by the trial Judge on the basis of new evidence relating to jeopardy of the person. The Crown had to comply with the terms of the earlier Judgment of the Court of Appeal. So far as the third direction to make the person available, there appeared to be some real difficulty because the witness was not cooperating. The Crown had a choice:
(1) if the Crown wished to avoid the problem already encountered in trying to comply with the third requirement (of making witness available) the Crown could meet its disclosure obligations by fully complying with the other two requirements, namely, disclosing the evidence of the informer before trial and disclosing the full name and whereabouts of the person before trial, or alternatively,
(2) the Crown could choose to comply with the third requirement by producing the person by way of ensuring that he would cooperate and answer all proper questions. The trial Judge was directed to give time to the Crown if it sought for variation on the ground of jeopardy to the person.
The above case, in essence indicates that where there is evidence of jeopardy to the witness, the directions for disclosure of name, whereabouts or enabling his production, may not be given.
6.5.4 Canadian Broadcasting Corpn. v. New Brunswick (Att. General) (1996(3) SCR 480) In this case, the Canadian Supreme Court disagreed with the trial Judge's exclusion of media and public from Court room to avoid hardship to 'the victims and the accused' during the sentencing proceedings.
The Media (CBC) successfully challenged the order as infringing the freedom of press (see 486 (1) of Criminal Code and section 2(b) of Canadian Charter of Rights). Here the victims were not witnesses. The Supreme Court set aside the exclusion, holding that public access to Courts is fundamental. It held that the Court could order exclusion to protect the innocent and safeguard the privacy interests of witnesses in cases of sexual offences.
No doubt, the statutes permit covertness in the interests "proper judicial administration of justice", but, here, the exclusion of media and public throughout was not justified. Mere fact that victims were young females was not by itself sufficient to warrant exclusion. The victims' privacy was already protected by a publication ban of identities and there was no evidence that their privacy interests required more protection.
6.5.5 R v. Leipert: (1997) (1) SCR 281
In this case, the police had received a tip off from the Crime Stoppers Association that the accused was growing marijuana in the basement. The police made an inspection of the locality, found smell and applied for a search warrant. The application disclosed, among others, that there was reliable information from the above Association. The accused was duly charged with the offence. At the trial, the accused, relying upon the Canadian Charter of Rights and Freedom, called upon the Crown to make available the documents of the Association which were the subject matter of the report to the police.
The Crown refused disclosure on the ground of "informer privilege". The trial Judge saw the document and after trying to edit the notice where there are references as to the identity of the informer, ordered disclosure. Then the Crown asked that the warrant may be relied upon without reference to the "tip sheets". The trial judge refused this request because the accused did not consent. The trial Court granted acquittal as the Crown did not tender evidence and the defence did not call any evidence.
On appeal by the Crown, the judgment was reversed by the Court of Appeal and a retrial was ordered. Upholding the appellate Court's order of retrial, it was held by the Supreme Court that the law recognizes informer's privilege to anonymity but this was subject to the principle "innocence at stake" exception. There must be a basis in the evidence for concluding that disclosure of the informer's identity is necessary to demonstrate the "innocence" of the accused.
The accused's right to full disclosure of documents in the Crown's possession in aid of the Charter guarantee of the right to make full answer and defence, as interpreted in Stinchcombe (1991) 3 SCR 326, had not created a new exception to the informer privilege rule. To the extent that rules and privileges in favour of the informant stand in the way of an accused person establishing his innocence, they must yield to the Charter guarantee of a fair trial, where 'innocence is at stake' and the common law rule of informer privilege does not offend this exception.
When an accused seeks to establish that a search warrant is not supported by reasonable grounds, he may be entitled to information which may reveal the identity of an informer notwithstanding informer privilege in circumstances where the information is "absolutely essential". "Essential circumstances" exist where the accused establishes the "innocence at stake' exception to informer privilege.
Anonymous "tip sheets" should not be edited with a view to disclosing them to the defence unless the accused can bring himself within the "innocence at stake" exception. The Court can deprive the informer of the privilege which belongs to him absolutely, subject only to the 346'innocence at stake' exception. Unless informer identity is protected, the efficacy of programmes such as Crime Stoppers, which depend on guarantee of anonymity to those who volunteer information on crimes, would be adversely affected.
In the case of an anonymous informer, where it is impossible to determine which details of the information provided by the informer will or will not result in that person's identity being revealed, none of those details should be disclosed, unless there is a basis to conclude that the "innocence at stake" exception applies.
The Supreme Court held, on facts, that the trial judge erred in editing the tip sheet and in ordering the edited sheet be disclosed to the accused. The identity of the anonymous information is protected by privilege, and, given the anonymous nature of the tip, it was impossible to conclude whether the disclosure of details remaining after editing might be sufficient to reveal the identity of the informer to the accused. The informer's privilege required nothing short of total confidentiality in this case. As it was not established that the informer's identity was necessary to establish the innocence of the accused, the informer's privilege would continue in place.
It was further held that the trial judge also erred in declining to allow the Crown to delete the reference to the informer from the material in support of the search warrant. Since the accused had not brought himself within the 'innocence at stake' exception, the trial judge should have permitted the Crown to defend the warrant, by deleting therefrom, the reference to the tip from the Association.
6.5.6 R v. Mentuck: 2001 (3) SCR 442:
In this case, the Court gave more importance to the need to see that adequate protection is given to the witnesses to strengthen the 'administration of justice'.
The accused was charged with second degree murder. The trial Judge granted a one year ban as to the identity of the undercover police officers and refused to ban disclosure of the operational matters used in investigating the accused.
The Supreme Court upheld the one year ban as to the identity of undercover police officers to prevent "serious risk" to the 'proper administration of justice'. The applicant, no doubt, had the burden to show that anonymity of the police officers was required. It was felt that at the same time, there should be minimal impairment of right to open justice. The refusal to ban disclosure of the operational methods of police, was in order.
(e)6.6 South Africa:
The approach in South Africa, however, proceeds on a case by case basis in order to balance the conflict of interests with a view to ensure proper administration of justice. The statute permitted in camera proceedings and adequate discretion to the Court.
6.6.1 In South Africa, section 153 of the Criminal Procedure Code permits criminal proceedings being held in camera particularly where it is necessary to protect privacy of the victims. The offences of indecency and extortion (and related statutory offences) may arise out of facts which do not always demand that the privacy of the victims and/or witnesses trump the right to a public trial. Section 153(3) grants discretion to judicial officers whether to order that the hearing be held in camera. However, the scope of the discretion is controlled by the nature of the offence alone.
Section 154 permits prohibition of publication of certain information relating to criminal proceedings. While the identity of the victim should be protected, the public may have an interest in knowing the identity of the accused and the nature of the incident but even here, the Court will have the discretion to refuse the publication of the name of the accused, if the complaint is a frivolous one.
6.6.2 Chapters 3, 4 and 5 of the Discussion Paper 90 of the South African Law Commission, project 101 (2000) deal with this aspect. Chapter 3 deals with equality and access to Courts, Chapter 4 with Right to fair trial and Chapter 5 with Right to a public trial. Chapter 6 deals with right to adduce and challenge evidence and adequate facilities to prepare defence. The right to cross-examination is basic in South Africa. But the Courts are of the view that the right is not absolute either under common law or statute law.
The South African Courts too have preferred to permit the witness to give evidence behind closed 'doors' or to give the witness 'anonymity' and not reveal their addresses. The Court also prefers to prohibit the press from reporting on identity rather than exclude the press from the Court room.
6.6.3 S v. Leepile: 1986 (4) SA 187 (W)
In S v. Leepile: 1986(4) SA 187 (W), during the trial in which the accused faced charges, interalia, of treason arising out of their activities as members of the African National Congress (A.N.C), the prosecution applied for a direction that the evidence of a particular witness referred to as Miss B be given behind closed doors and that only persons whose presence was essential for the hearing of the case be allowed to attend. A further prayer was that the present residential address of the witness be disclosed only to the Court and to counsel but not to the accused.
The application was made under section 153(2) of the Criminal Procedure Act, 1977, which authorized the hearing of evidence behind closed doors where it appears that 'there is a likelihood that harm might result' to a witness. There was strong evidence in support of the application. Miss B testified that she had left South Africa in 1978 and had become a member of the ANC, that she received military training from the ANC and worked for its military wing until she was arrested on a mission in South Africa in 1983.
The evidence was sufficient to convince Ackermann J in the High Court that if the ANC were to know that Miss B testified for the State she would be regarded as 'an informer', a collaborator and as a traitor of the ANC cause'. Thus, the Judge, on facts, placed the witness 'in a high risk' category as far as the likelihood of harm to her is concerned, but he was still not inclined to grant relief in the terms prayed for. He declined to exclude the press. So far as the address of the witness was concerned, he said that there was no point in allowing it to be given to the defence counsel because counsel was professionally bound to tell his client.
Instead, the Judge preferred to pass an order that the witness be allowed to testify behind closed doors and no person was allowed to be present unless such presence was necessary in connection with the proceedings. Members of the press who held identification documents 'to the satisfaction of the prosecuting counsel' were allowed to be present subject to the condition that neither Miss B's identity nor that of her immediate family, nor her place of residence, be revealed.
In the same case, the prosecution applied for an in camera order for another person, and proposed to examine that person by a pseudonym and sought an order that his true identity be not disclosed to anyone, not even to the Court or defence counsel. Ackermann J refused to grant the wide request as it had serious consequences for the accused and said that such exclusion would 'require the clearest language on the part of the legislature to make such an order competent'.
6.6.4 S v. Pastoors: 1986(4) SA 222 (W)
However, in S v. Pastoors 1986 (4) SA 222 (W) the Court allowed the identity of a prosecution witness to be withheld 'from the defence'. The Court held there was 'real risk' that the witness would be attacked or even killed and observed:
"In every case of this nature, the Court is confronted by a conflict of interest. In resolving this conflict, the Court must protect those interests which, on the facts of the particular case, weigh in favour of proper administration of justice. Such protection, if granted, should therefore, not go further than it is required by the exigencies of the case."
The Court further ordered that if the defence felt, at a later stage, that it required to know the identity of the witness, it would be able to apply to the Court again.
(f) 6.7 United States:
6.7.1 We shall give a brief summary of the manner in which the US Supreme Court tackled with the problem.
The Courts in US have held that the constitutional protection in favour of the right to confrontation by way of cross examination, as provided in the Sixth Amendment of the Constitution, was not absolute and could be restricted for the purpose of protecting the witness identity by using a video-link and permitting cross examination by shielding the witness from the accused though not from his lawyers or the Court or the Jury. Initially, between 1925 and 1968, the right to confrontation of the witness by way of cross examination was treated as absolute.
In 1968, in a concurring judgment, White J in Smith v. Illinois: (1968) 390 US 129 said that witness identity could still be protected where witness safety was involved. Though the Courts of Appeal and trial Courts, in several cases, followed the dissenting observation of White J, the Supreme Court in later cases again reiterated its earlier view that the right to cross examination was absolute. However, in 1990 in Maryland v. Craig 497 US 836, it accepted the video-link method to screen the witness from the accused though not from the Court or the defence lawyer or Jury.
In the US Constitution, the Sixth Amendment mandates that
"in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial......; and to be confronted with the witnesses against him...."
In addition, the First Amendment ensures freedom of speech, freedom of press and has been interpreted as granting to the public and to the press access to any trial and to information about witnesses.
While both these provisions apply only to the federal government, because they contain the fundamental rights, the US Supreme Court has made them applicable to the States also through the due process clause of the Fourteenth Amendment. (Gotlow v. New York (1925) 268 US 152; Pointer v. Texas: (1965) 380 US 400)
The right of the defendant to cross examine a witness flows directly from this constitutional right of confrontation.