Report No. 198

(8) The question is whether the complainant (in the case of a private complaint) or the prosecution should file an application before the Magistrate seeking non-disclosure of identity of the witness, before the stage of section 207, 208 of the Code of Criminal Procedure, 1973.

As discussed in Chapter VII, the stage at which anonymity may be claimed during investigation is the stage when section 161 or section 164(6) statements are recorded. Anonymity may also be claimed before copies of documents are issued to the accused under ss 207, 208.

(9) What should be the consequence of an anonymity order passed during the stage of investigation or inquiry? Should the identity and address of the witness be directed to be not reflected in the documents to be given to the accused and should the original documents be kept in safe custody? Should it direct that the Court proceedings (before actual trial) not also reflect the identity?

(A) At the stage of investigation/inquiry, if the Magistrate comes to the conclusion that witness anonymity order has to be passed, he shall have to direct that in all documents which contain references to identity, including the 161 statements or section 164 statements, the chargesheet of which a copy has to be given to the accused, the name and address and other information that may lead to the identification of the witness should not be reflected.

In the POTA (which has since been repealed in 2004 and which provisions have been brought into section 44 of the Unlawful Activities (Prevention) Act, 1967) it was stated in section 30(3)(b) and (c) that the Special Court may direct as follows:

"(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records accurible to the public;

(c) the issuing of any directions for securing that the identity and address of the witnesses are not disclosed;

(d) ... ... ..."

For example, Rule 75 of the Rules of the Trial Chamber International Criminal Tribunal for former Yugoslavia (ICTY) requires in clause (B)(a) the

"(a) expunging names and identifying information from the Chamber's public records;

(b) non-disclosure to the public of any records identifying the victim;

(c) ... ... ...

(d) assignment of a pseudonym.

Such a procedure must be followed. We do not find any such rule in the New Zealand Evidence Act, 1908 as amended in 1997. The above provision of ICTY must, therefore, be incorporated.

(B) Likewise, when an application claiming anonymity is filed before the trial, similar provisions are necessary.

We recommend that as a consequence of the anonymity order, the identity and address should not be reflected in the document to be given to the accused and the original documents should be kept in safe custody. The above details should not be reflected in the Court proceedings also.

We have, in fact, made provisions in this behalf in sections 6, 10, 12 of the Draft Bill annexed hereto.

(10) At the trial, if the Judge is satisfied about the danger to the witness, should the recording of statement of the witness be made in such a manner that the witness and the accused do not see each other and the Judge, the prosecutor and the defence counsel alone see him (using two cameras)? Should the witness who is shown on the video-screen be visible only to the Judge, prosecutor and the defence counsel? Should the taking of photographs in Court by others be banned?