20.33While MACMA is currently silent on the issue, there is a strong argument that it should be used to obtain evidence on a defendant’s behalf.
20.35The law should be clarified in this area. The “two-step” process, as adopted in Australia, seems preferable. This process addresses many of the arguments against permitting requests. The court has responsibility for assessing the admissibility and probative value of requested evidence and for determining whether the defendant would be unfairly prejudiced if the material were not available. The court can therefore protect central authorities from ill-advised requests and can limit delaying tactics.
20.36Even if there remains some risk that defendants would delay proceedings while pursuing foreign requests, there is equally a risk that defendants would allege a breach of fair trial rights and seek a stay of proceedings if there were no mechanism available for defence requests.
20.37One oddity in the Australian approach, however, is that the court must have regard to whether the foreign country is likely to grant such a request. Assessing this would likely require research into the history of similar requests and relations between the two countries. Given that most judges have little experience in these sorts of requests, requiring the court to consider this factor may be inappropriate and an unnecessary burden on court time. It makes more sense for the Attorney-General to have regard to this factor while exercising his or her discretion at the “second step” of the request process. The Attorney-General is also better placed to consider issues such as the general comity of relations between the two countries.
20.38The “two-step” process appears more administratively burdensome. However, permitting a defendant to make a request directly to the Attorney-General would require Crown Law to become familiar with the case and assess issues that are better evaluated by the judge in that case, such as the probative value of the evidence requested.
Questions
Q84 Do you think MACMA should be clarified to expressly allow it to be used to obtain evidence on a defendant’s behalf?
Q85 If yes, do you think the defendant should be required to apply to the trial court to obtain approval to use the MACMA process?
20.40It seems to us that the question of whether the defence may request assistance should be a domestic issue for the foreign country. Provided the request is made to New Zealand from the foreign authority tasked with making such requests, and not directly from the foreign defendant, it should not be refused on the grounds that the evidence is for the defendant.
Question
Q86 Should New Zealand be unconcerned as to who the ultimate recipient of the MACMA request might be, provided the request has been made by the foreign central authority?
