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Report No. 198

(7) In the application for granting anonymity before the Magistrate or Court of Session.- should the Judge be satisfied that the life or property of the witness or his relation "is" in serious danger or is it sufficient to show that there is 'likelihood' of such danger? Is the mere ipse dixit of the witness sufficient?

It is obvious that it is neither necessary nor is it possible for the prosecution to prove that life or property of himself or his relatives "is" actually in danger. All that is possible for the prosecution is to prove that there is 'likelihood' of such danger, having regard to either previous attempts of the accused or his associates or having regard to the incidents with which the accused or his associates are notoriously involved etc.

The meaning of the words 'likely' used in section 13C(4)(a) of the New Zealand statute has been discussed in para 6.4.7 of the Consultation Paper. The Court in Atkins (see para 6.4.8 of the Consultation Paper) referred to the meaning of the word 'likely' given in other cases. It 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 produce 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)

It is the existence, in a real sense, of danger to safety (or serious danger) 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 civil 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. This approach is consistent with that adopted by the English Court of Appeal in R v. Lord Saville of Newdigate: 1999 (4) All ER 860.

Lord Woolf MR, giving the judgment for the Court said that the issue was not to be determined by the onus of proof, and approved the dictum of Lord Diplock in Fernandez v. Government of Singapore 1971 (2) All ER 691 Prejudice involving a risk of inappropriate trial or punishment was there at issue. Lord Diplock said at p. 647:

"My Lords, bearing in mind, the relative gravity of the consequences of the Court's expectation being falsified in one way or in the other, I do not think that the test of applicability of para (c) is that the Court must be satisfied that it is more likely than not that the figutive will be detained or restricted if he is returned. A lesser degree of likelihood is in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court "A reasonable chance" or 'substantial ground for thinking' or 'a serious possibility'."

That is also our view as to the meaning of the word 'likelihood' of danger.

The ipse dixit of the witness about danger to himself or to his relatives or to their property can be accepted only if the Court finds the material produced by the prosecution or the evidence of the witness 'reliable'. In Maryland v. Craig: (1990) 497 US 836 the US Supreme Court said that the reliability of the testimony is to be judged.

Section 13C(4) of the New Zealand Evidence Act, 1908 (as amended in 1997) requires in Cl.(b) that the Court must be satisfied, in the case of anonymity of defence witnesses, that (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 associate of the accused; or (ii) the witness's credibility can be tested properly without the disclosure of the witnesses' identity.

Further, 13C(5)(f) requires the Judge to consider 'whether there is other evidence which corroborates the witness's evidence'.

Likewise, section 17 of the Portuguese Act (see para 6.9 of the Consultation Paper), subclause (c) refers to the credibility of the witness being beyond reasonable doubt.

We are proposing a definition of 'threatened witness' which includes victims who seek anonymity orders and we have used the word 'likelihood' of danger to the life or property of the witness or of his close relatives in that definition. We have also proposed a definition of 'close relatives'.

Therefore, we recommend that there need be no proof of actual 'danger' to the life of the witness or his relatives or their property but proof of 'likelihood' is sufficient. The material or evidence placed for the purpose must be reliable.



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