Chapter 20
The ability of defendants to use MACMA


20.1The Mutual Assistance in Criminal Matters Act 1992 (MACMA) is silent on whether it is available for use by defendants. MACMA was originally designed purely to facilitate international cooperation between official bodies, and therefore it could be argued that defence requests should be filtered through the prosecution before access to MACMA is granted. However, arguably, there should be a more formalised/direct process for defendants to access information held by foreign governments for their defence.

20.2In this chapter, we ask whether MACMA should be amended to provide expressly for defence requests and, if so, what that amendment should look like. To facilitate this discussion, we explain the practice that has developed in New Zealand and the debate that has arisen in the context of the Harare Scheme. We also summarise the legislative responses that have been adopted to resolve this issue in Australia, Canada, and the United Kingdom.

20.3In our view, MACMA ought to be amended to provide clear guidance on this issue. For outgoing requests, we consider that a New Zealand defendant should be required to apply to the trial court to obtain approval to use the MACMA process. For incoming requests, we consider that New Zealand should not be concerned as to who the ultimate benefactor of the request might be, as long as the request has been made by the foreign central authority.