Report No. 198
(B) Procedure in other countries: (UK, Australia, New Zealand)
We shall now refer to a few decisions from other countries in this context which deal with the procedural aspects.
In R v. David, Johnson and Rowe: 1993(1) WLR 613, it was held that the non-disclosure can be permitted in ex parte proceedings.
In Jarvie & Another v. The Magistrate's Court of Victoria at Brumwick and Others: (1995)1 V.R. 84 (Victoria, Australia), the Court held that the trial Courts order was applicable at the stage of committal as well as the trial.
In New Zealand in R v. Hines: (1997)15 CRNZ 158, the majority, as already stated, felt that if witness anonymity was to be given, it was a matter for legislation. But, Gault and Thomas JJ dissented and held that there was no need for legislation and that the Court could grant anonymity under inherent powers. They, however, stated that the Court must grant anonymity except where the witness's credibility was 'reasonably in issue'. They felt that the witness's fear must be real and justified and that the accused is not to be easily deprived of a fair trial. The need for granting anonymity must be decided in a 'voir dire' proceeding.
We have already stated that the New Zealand Parliament enacted sections 13B to 13J under the Evidence (Witness Anonymity) Amendment Act, 1997. This Act provided for a preliminary or rather voir dire proceeding for dealing with the issue. These provisions, in our view, contain a fair balancing of rights of witnesses and victims on the one hand and the rights of the accused on the other, and can be a model on the basis of which we can suggest changes to suit our conditions.
The New Zealand provisions provided for an anonymity order to be passed at the pre-trial stage (sec 13B), and at the stage of trial (sec 13(C). We shall first refer to these provisions before we suggest the modifications.
(1) Section 13B, which related to the pre-trial anonymity stated in sub section (2) as follows:
"Sec 13B(1): ...........................
(2) At any time after the person is charged, the prosecutor or defendant may apply to a Judge for an order
(a) Excusing the applicant from disclosing to the other party prior to the preliminary hearing the name, address and occupation of any witness (except with the leave of the Judge), any other particulars likely to lead to the witness's identification; and
(b) Excusing the witness from stating at the preliminary hearing his or her name, address and occupation and (except with leave of the Judge) any other particulars likely to lead to the witness's identification.
Further, at the pre-trial stage, section 13B(3) states that the hearing must be in chambers and the Court must hear both sides and the identity shall, of course, be disclosed to the Judge. Section 13B(3) states as follows:
"Section 13B(3) The Judge must hear and determine the application in Chambers, and
(a) The Judge must give each party an opportunity to be heard on the application; and
(b) Neither the party supporting the application nor the witness need disclose any information that might disclose the witness's identity to any person (other than the Judge) before the application is dealt with.
(2) Section 13C, at the stage of trial, is on the same lines as section 13B and we need not again extract the provisions of section 13C.
Analysing the same, it is clear that in New Zealand, the procedure at the pre-trial stage, (i.e. after the accused is charged of the offence), required that an application for anonymity be filed by the prosecutor for granting anonymity prior to the preliminary hearing and also for exempting the witness from stating his identity at the preliminary hearing. The Judge has to hear the matter in chambers and give an opportunity to the applicant (prosecution) as well as to the accused. The prosecutor and the witness need disclose identity of witnesses only to the Judge and none others.
The section as it is drafted there applies even to an application for anonymity of a defence witness. If the prosecution files an application for grant of anonymity in respect of a witness at the pre-trial stage, it is obvious that before the application is taken up for hearing in chambers, the witness's identity must not be disclosed to the accused. Otherwise, the very purpose of the application is lost. Once the Judge deals with the application of the prosecution in chambers as above stated, he has to pass an order under sec B(4) if the Judge believes that there are 'reasonable' grounds 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 property, if the witness's identity is disclosed prior to trial; and
(b) withholding the witness's identity until the trial would not be contrary to the interests of justice."
This in New Zealand is the role of the Judge at the pre-trial preliminary hearing application filed by the prosecution. But the Judge has some more duties. The Judge, as stated in section 13B(5), has to have regard to six other factors:
(a) the general right of an accused to know the identity of witnesses; and
(b) the principle that witness anonymity orders are justified only in exceptional circumstances; and
(c) the gravity of the offence; and
(d) the importance of the witness's evidence to the case of the party who wishes to call the witness; and
(e) whether it is practical for the witness to be protected prior to the trial by any other means; and
(f) whether there is other evidence which corroborates the witness's evidence."
If the Court at the pre-trial stage grants anonymity, then under section 13B (6), the following consequences follow, namely:
"(a) the prosecution 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 preliminary hearin.-
(i) no oral evidence may be given, and no question shall be put to any witness, if the evidence or question relates to the name, address, or occupation of the witness who is subject to the order; and
(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 relates to any other particulars likely to lead to the identification of the witness who is subject to the order; and
(d) 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.
Similarly, in New Zealand, section 13C provides for an order at the trial and virtually the same procedure under section 13B is incorporated in section 13C also.
We do not propose to extract section 13C provisions again.
It will be clear that subsection (6) of section 13B and subsection (6) of section 13C ensure that, even after trial, the anonymity continues.
Section 13J creates offences for intentional breach of the provision of section 13B and 13C and we recommend the same to be adopted.
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