Chapter 20
The ability of defendants to use MACMA

Should defence requests be permitted?

The arguments for defendant requests

20.25The main argument for permitting defence requests for assistance is the need for equality of arms. The principle of equality of arms is part of the wider concept of the right to a fair trial. It requires that each party is given a reasonable opportunity to present their case under conditions that do not place that party at a substantial disadvantage vis-à-vis the other party.921 If a defendant’s right to a fair trial is breached, it “must inevitably result in the conviction being quashed”.922
20.26As one commentator has noted, “… it is not unrealistic to contemplate an unfair trial as a result of evidence beneficial to the defence being irretrievable, perhaps even unknown to the defence, on this basis”.923 Providing a mechanism for defence requests for assistance protects the fairness of criminal proceedings and provides a means of balancing the state’s exclusive control over evidence gathering.924 Without such a mechanism, the defence is likely to be precluded from gathering evidence in a foreign state. Permitting defence requests would also limit defendants’ ability to derail prosecutions based on breach of fair trial rights challenges.
20.27The importance of the equality of arms concept was recognised by the Commonwealth Law Ministers when considering a possible amendment to the Harare Scheme.925 Similarly, the International Law Association has proposed that states consider “the needs of the indigent individual unable to afford to collect evidence in his defence abroad”.926 In New Zealand, the High Court considered, in Samleung, that an Attorney-General would breach section 25(f) of the New Zealand Bill of Rights Act if he or she declined to make a request despite being satisfied that there were reasonable grounds to do so.927
20.28One of the guiding principles of this review requires that, where possible, New Zealand should provide assistance to foreign countries, similar to that which is available domestically. In New Zealand, the Criminal Disclosure Act 2008 allows a defendant to apply to the court for an order granting a hearing to determine whether information that is held by a non-party should be disclosed to the defendant.928 If the application is granted and the hearing takes place, the judge may order the person or agency to disclose the information to the defendant.929 Permitting defendants to use MACMA would allow a similar tool to those available for requests domestically.

The arguments against defendant requestsTop

20.29The key argument against permitting defence requests is that mutual legal assistance is fundamentally a state-to-state enforcement mechanism designed for governments, not individuals, to seek assistance. The purpose of mutual legal assistance requests is to combat transnational crime and ease procedural difficulties.930
20.30Permitting defence requests is likely to place pressure on an “already overburdened” mutual legal assistance system.931 One commentator has noted the desirability of shielding foreign jurisdictions from ill-advised requests from individual criminal defendants.932 There is also a risk that defendants will use foreign requests as a strategy to delay prosecutions, wasting both domestic court time and placing pressure on central authorities.

20.31There is also a serious concern about potential “fishing expeditions” by the defence. This is because the job of the defence is not to prove matters but to raise doubt. Thus, the court may have some difficulty in assessing the relevance of the defendant’s request.

20.32Finally, it is arguable that the fair trial rights of the defendant are protected by domestic exclusionary rules.933 However, this does not fully address the issue. Although evidence before the court may be excluded by these rules, they do not allow the defence to access other, potentially exculpatory evidence not before the court.
921Sabine Gless “Transnational Cooperation in Criminal Matters and the Guarantee of a Fair Trial: Approaches to a General Principle” (2013) 9 Utrecht L Rev 90 at 91.
922Christopher Murray “Defense Requests for International Judicial Assistance: The U.K. Perspective” (1999) 23 FILJ 1344 at 1347.
923Currie, above n 899, at 170.
924Currie, above n 899, at 171.
925Prost, above n 900, at 426.
926International Law Association Report of the Sixty-Eighth Conference (Taipei, 24–30 May 1998) at 10, as cited in Currie, above n 899, at 171.
927Samleung, above n 897, at 292. This is discussed in more detail at [20.4]–[20.5] above.
928Criminal Disclosure Act 2008, s 24(2). The court may grant the application for a hearing based on the likelihood that the information is held by those alleged, or by another person or agency, and that it appears relevant: Criminal Disclosure Act 2008, s 25.
929Criminal Disclosure Act 2008, s 29(1).
930Currie, above n 899, at 170.
931Prost, above n 900, at 426.
932Janice Brabyn “Inter-Jurisdictional Co-operation in Criminal Matters: Extradition, Mutual Legal Assistance, Prisoner Transfer to and from the HKSAR” in Raymond Wacks (ed) The New Legal Order in Hong Kong (Hong Kong University Press, Hong Kong, 1999) 133 at 151.
933Currie, above n 899, at 170.