Chapter 20
The ability of defendants to use MACMA

New Zealand practice

20.4In 1994, a New Zealand defendant facing charges under the Customs Act 1966 applied to the High Court for it to use its inherent jurisdiction to, in effect, make a mutual legal assistance request to Hong Kong.897 The High Court found that its inherent jurisdiction did not extend to issuing such a request. The Court held that, in passing MACMA, Parliament expressed an intention that letters of request from New Zealand in criminal matters should be dealt with exclusively via the procedure in Part 2 of that Act.

20.5In reaching this decision, the High Court commented that nothing in MACMA suggests that the Attorney-General may only use his or her power to request assistance on the prosecution’s behalf. The Court opined that section 25(f) of the New Zealand Bill of Rights Act 1990 would be breached if the Attorney-General was satisfied that reasonable grounds existed in terms of obtaining evidence for a defendant in a criminal matter for use in a New Zealand court under section 11(1) of MACMA, but nonetheless declined to make a request.

897Samleung International Trading Co Ltd v Collector of Customs [1994] 3 NZLR 285 (HC).