Contents

Chapter 15
Defendant requests under the new Mutual Assistance Bill

Outgoing requests

15.3Although MACMA does not explicitly provide for mutual assistance requests to be made by defendants, it has been held that the mutual assistance system is open to defendant requests. Blanchard J noted in Samleung International Trading Co Ltd v Collector of Customs that the Central Authority declining to make a request for assistance, despite being satisfied that reasonable grounds existed to justify a defendant obtaining evidence from a foreign country for use in New Zealand proceedings, would “plainly contravene” section 25(f) of the New Zealand Bill of Rights Act 1990.455

15.4We suggested in the Issues Paper that clear statutory guidance on this should be provided. We thought the statute should provide that requests may be made by the Central Authority on behalf of New Zealand defendants, subject to the requirement that the defendant first apply to the trial court for approval. The court would then direct the Central Authority to make the request on behalf of the defendant, while leaving a residual discretion with the Central Authority to decline to make the request if it deemed the request inappropriate in the circumstances.

15.5We still think that the legislation should specifically address the use of the mutual assistance system by defendants, and that the mechanisms should operate broadly in the way we outlined in the Issues Paper.

15.6As we stated in the Issues Paper, central to the matter of whether or not defendants should have access to the mutual assistance system is a question of the defendant’s right to a fair trial.456
15.7This is not a novel concept. Indeed, as we noted in the Issues Paper, the notion of providing access to the mutual assistance scheme to defendants has been endorsed by the Commonwealth Law Ministers.457 Furthermore, both Australia and the United Kingdom already make specific provision for defence requests in their respective mutual assistance statutes.458

Submissions

15.8Submitters’ views were mixed on this proposal. The New Zealand Police were most strongly opposed. Police were concerned that such a mechanism might be used speculatively, or as a delaying tactic, and more generally that there would be resourcing implications for both the New Zealand Central Authority and foreign central authorities. In that regard, Police stressed that if any access were to be provided for defendants, it should be strictly overseen by the New Zealand courts to ensure it was being used appropriately.459
15.9Police also disagreed with our view in the Issues Paper that providing for defendant requests would mirror the domestic position, whereby the Criminal Disclosure Act 2008 provides that a defendant may apply to the court for an order granting a hearing to determine whether information held by a non-party should be disclosed to the defendant. In that situation, where an application is granted and a hearing takes place, the judge may order the person or agency to disclose the information to the defendant.460 In Police’s submission, MACMA is not the same. Rather, Police emphasised that MACMA provides the framework for a government-to-government service, to facilitate information flows between New Zealand law enforcement agencies and law enforcement agencies in different jurisdictions, and that this service is required because of the complex nature of information-sharing between different jurisdictions.461
15.10Crown Law also raised concerns. Like the Police, it emphasised that mutual assistance is fundamentally a government-to-government law enforcement mechanism, not to be used for the benefit of individuals. It was also concerned that, given the assistance that may be provided via mutual assistance, it is possible that enabling defence requests would give the defence more coercive powers in relation to overseas material than they have for New Zealand material.462
15.11Nevertheless, Crown Law recognised that there are fair trial arguments to be made on the defence’s behalf if the mutual assistance process cannot be used on behalf of the defence. It also submitted that if it is accepted that defendants should have access to the mutual assistance system, the legislation should be amended to allow for this on the basis that issues of process will need clarification, addressing questions of scope and quality control.463
15.12The Law Society thought that there was a strong argument in favour of the mutual assistance system being used to obtain evidence on a defendant’s behalf.464 Professor Boister also commented that such a procedure would “assist in the quality of criminal justice in New Zealand courts, and is an excellent idea”.465

Our recommendationTop

15.13As noted above, we believe that the new Act should explicitly provide for defendant requests. There are two key elements to the draft provision: the process for obtaining assistance; and types of assistance available. We detail both below.

Process for obtaining assistance

15.14We stated a preference in the Issues Paper for the two-step approach contained in section 39A of the Australian Mutual Assistance in Criminal Matters Act 1987 (Cth). Under this approach, a defendant may apply to the court for a certificate stating that it would be in the interests of justice for the Attorney-General466 to make a request to the foreign country on the defendant’s behalf. If the court issues the certificate, under the second step:

… the Attorney-General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.

15.15In terms of the first step, the court would only approve the request if satisfied that it is in the interests of justice that the request is made. In line with the Police’s submission, we envisage the courts taking a strict approach, focusing particularly on:

(a) the extent to which the material sought would not otherwise be available;

(b) whether it is likely the material sought would be admitted in the New Zealand proceedings;

(c) the likely probative value of the material sought in relation to any issue likely to arise in the New Zealand proceeding were that material admitted into evidence; and

(d) whether the defendant would be unfairly prejudiced if the material sought were not available to the court.467
15.16This is an important step in the process that will ensure the request is appropriate and sufficiently important. It will filter out requests that are merely speculative, made for the primary purpose of delaying the substantive proceedings, or those that are simply ill-advised. The Australian experience gives us confidence that this approach will prevent the risk of overburdening the mutual assistance system. Under the Australian system, requests for obtaining assistance, both incoming and outgoing, are rare. In the period from 2007 to December 2015, the Australian Central Authority only made two requests on behalf of defendants, and received one.468

15.17If the court is satisfied that the request is appropriate, it will then direct that the Central Authority make the request unless the Central Authority believes, for reasons other than those listed in clause 63 (which the court itself must consider), that it would not be appropriate in the circumstances to make the request. This allows the Central Authority to take into account issues such as the general comity of relations between the two countries.

15.18As a part of its assessment, we think that the Central Authority should consider whether the foreign country is likely to grant the request. This is a factor for consideration by the court in Australia, but we think it is better assessed by the Central Authority given that it will likely require research into the history of similar requests, and the history between New Zealand and the country in question; inquiries the Central Authority is better placed to undertake.469
15.19This approach leaves the Central Authority at the centre of the mutual assistance process, despite the request coming at the behest of a defendant. We think this is appropriate as it remains true to the character of mutual assistance being fundamentally an intergovernmental arrangement – a point stressed in submissions. A consequence of this, as Crown Law noted in its submission, is that any material received from the foreign country will first be received by the Central Authority (that is, Crown Law). The problem is that many defendants would not want Crown Law to receive the requested material. Despite this, we think it is appropriate that all requests are made to and from the Central Authority. It would be the Central Authority’s responsibility to ensure that the appropriate mechanisms are in place to protect defendants’ interests. Ultimately, we think that the draft provision achieves the best balance between retaining the government-to-government character of mutual assistance, while helping to ensure a defendant’s right to a fair trial. As has been noted in relation to the Australian provision:470

This approach has the advantage of leaving with the government the role of dealing with foreign governments in international co-operation issues while at the same time ensuring that the enhanced facilities available to prosecutors do not result in unfair trials.

Types of assistance available to defendants

15.20The other notable feature of the Australian provision is that it restricts the types of assistance the defendant may obtain via the mutual assistance system to those associated with the collection of evidence in relation to criminal matters. There are four categories of assistance a defendant may access:

15.21Arguably, this goes too far. As Crown Law noted in its submission, given the type of assistance that may be provided under the mutual assistance scheme, it is possible that enabling defence mutual assistance requests may give the defence more coercive powers in relation to overseas material than they have for New Zealand material. Crown Law singled out assistance in obtaining an article by search and seizure as an example.471 As a result, it was suggested that the type of assistance New Zealand is prepared to request on behalf of the defence should be limited to that which the defence could achieve for itself in New Zealand.472 We agree. In principle, a New Zealand defendant should have the opportunity to access the same information or evidence to which he or she would have access to domestically, to the extent appropriate within the mutual assistance system.

15.22As such, we think that the statute should provide that a New Zealand defendant may access the mutual assistance scheme to request the following:

Recommendation

455Samleung International Trading Co Ltd v Collector of Customs [1994] 3 NZLR 285 (HC) at 10.
456Issues Paper, above n 454, at [20.25].
457See Commonwealth Secretariat Report of the Oxford Conference on International Cooperation in Criminal Matters (1999) as cited in Robert Currie “Human Rights and International Mutual Legal Assistance: Resolving the Tension” (2000) 11 Crim LF 143 at 171. The Commonwealth Ministers did not, however, agree to a proposed amendment, which would have made “specific reference to the right of the defence to make such requests”, as the Ministers were satisfied that the Scheme already provided avenues for defence requests via the prosecution or order by judicial authority, and were concerned that the proposed amendment would provide an unqualified right of defence access that risked placing “enormous pressure on already overburdened mutual assistance systems”: see Kimberly Prost “Cooperation in Penal Matters in the Commonwealth” in M Cherif Bassiouni (ed) International Criminal Law: Volume II – Multilateral and Bilateral Enforcement Mechanisms (3rd ed, Martinus Nijhoff Publishers, Leiden, 2008) 413 at 426. We agree that an unqualified right of defence access is inappropriate. As such, cls 58–59 of the Mutual Assistance Bill provide strict parameters around the type of assistance that may be requested by defendants and the method for obtaining it: see the discussion at [15.13]–[15.22] of this Report. For discussion of the issue of defendant requests under the Harare Scheme, see Issues Paper, above n 454, at [20.6]–[20.14].
458Mutual Assistance in Criminal Matters Act 1987 (Cth), s 39A; and Crime (International Co-operation) Act 2003 (UK), s 7(3)(c). For discussion of the approaches taken overseas, see Issues Paper, above n 454, at [20.15]–[20.24].
459New Zealand Police submission at 17.
460Criminal Disclosure Act 2008, ss 24–29. See Issues Paper, above n 454, at [20.28].
461New Zealand Police submission at 17.
462Crown Law submission at [117]–[118].
463At [119].
464New Zealand Law Society submission at [102].
465Email from Neil Boister (Professor of Law, University of Waikato) to Geoff McLay (Commissioner, Law Commission) regarding the Law Commission review of the Mutual Assistance in Criminal Matters Act 1992 (13 March 2015).
466The Attorney-General fulfils the role of Central Authority in Australia.
467These requirements align with four of the five requirements in the Australian Act. As noted at [15.18] of this Report, we think the fifth requirement – assessing whether the foreign country is likely to grant the request – is more appropriately assessed by the Central Authority.
468Letter from Mark McCormack (Principal Legal Officer in the International Crime Cooperation Division of the Australian Government Attorney-General’s Department) to Geoff McLay (Commissioner, Law Commission) (22 December 2015).
469See Issues Paper, above n 454, at [20.37].
470Dianne Stafford “The Role of IAP in Encouraging International Co-operation” (paper presented to the Second Annual Conference and General Meeting of the International Association of Prosecutors “International Cooperation in the Global Village”, Ottawa, September 1997) at 7.
471As provided for in Mutual Assistance in Criminal Matters 1992, s 20; and Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], cls 35–40.
472Crown Law submission at [118].