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. If a defendant’s right to a fair trial is breached, it “must inevitably result in the conviction being quashed”.
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”. 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. 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. 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”. 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.
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. 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. 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.
20.30Permitting defence requests is likely to place pressure on an “already overburdened” mutual legal assistance system. One commentator has noted the desirability of shielding foreign jurisdictions from ill-advised requests from individual criminal defendants. 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. 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.