Chapter 21
Procedural concerns

New technology in the provision of evidence

21.3MACMA provides for requests to be made by New Zealand authorities to foreign countries for evidence to be taken for a New Zealand investigation or prosecution936 and for evidence to be taken in New Zealand at the request of a foreign country for a foreign proceeding.937 However, it is not clear whether newer technology (for example, electronic recording and video-link evidence) can be used in taking this evidence.
21.4The use of modern technology in providing evidential assistance to foreign countries has partially been recognised in New Zealand in the Evidence Act 2006. That Act provides that:938
21.5The Evidence Act also provides that a judge may direct that the witness gives evidence from an appropriate place outside the courtroom, whether in New Zealand or elsewhere.941

Other countries

21.6Australia recently amended their mutual legal assistance legislation to allow for some modern technology to be used for requests. Foreign countries making requests to Australia pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) can request for evidence to be “taken in Australia for live transmission by means of video link to a courtroom or other place in the requesting country”.942 Similarly, Australia can request that a person giving or producing evidence be examined or cross-examined in person or through video link.943 The Australian legislation also enables Australia to make a request to a foreign country arranging for a tape recording to be made of the taking of evidence944 and for a foreign country to request that a tape recording be made of evidence taken in Australia.945

21.7Further afield, the use of modern technology has been increasing through the work of international criminal tribunals, such as the International Criminal Court, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia.

Our approachTop

21.8Using available new technology in taking evidence could be more convenient and reduce costs. Video-link technology would enable a witness to give evidence in a courtroom of the requested country, in real time, to authorities in the requesting country. Cross-examination could also occur at this stage. A tape or video recording of the evidence could be helpful for taking the evidence-in-chief of a vulnerable witness or a witness whose reliability or credibility is in issue.

21.9The incorporation of new technology into MACMA requests would not be difficult. New Zealand courts already use audio-visual links (AVL). The use of this technology is primarily governed by the Courts (Remote Participation) Act 2010. This Act imposes general criteria for considering whether or not to allow the use of AVL for the appearance of any participant in civil or criminal proceedings946 and additional criteria to be considered solely in respect of criminal proceedings. The latter are designed to maintain effectively the right to a fair trial by focusing on the ability of the defendant:947
(i) to comprehend the proceedings; and
(ii) to participate effectively in the conduct of his or her defence; and
(iii) to consult and instruct counsel privately; and
(iv) to access relevant evidence; and
(v) to examine the witnesses for the prosecution;
21.10The Act involves consideration of the level of contact the defendant has with other participants. It also provides for consideration of any adverse impression that may arise through the defendant or any other participant appearing by means of AVL and whether that adverse impression may be mitigated.948

21.11Our view is that MACMA should be updated to account for new technologies, particularly in the area of taking evidence where it is not available domestically. To “future-proof” the Act, our preference would be to have a general provision allowing for the use of new technology in undertaking requests where that technology is available and its use permitted domestically. We think this is preferable to naming specific new technologies.


Q87 Can you foresee any problems with updating MACMA to account for modern technology where that technology can be used domestically?

936Mutual Assistance in Criminal Matters Act 1992, s 10.
937Mutual Assistance in Criminal Matters Act 1992, s 31.
938Subpart 1 of pt 4 of the Evidence Act 2006. Note that MACMA works in parallel with subpt 1. See s 153B of the Evidence Act 2006, which notes that subpt 1 is not subject to, and does not override, MACMA.
939Evidence Act 2006, s 168. When taking the evidence or receiving the examination or submissions, the New Zealand court may exercise in Australia all its powers that it is permitted to exercise in Australia under Australian law: s 169.
940Evidence Act 2006, s 173. The Australian court may exercise in New Zealand any of its powers, except its powers to punish for contempt and enforce or execute its judgments or process: Evidence Act 2006, s 174.
941Evidence Act 2006, s 105(1)(a)(ii).
942Mutual Assistance in Criminal Matters Act 1987 (Cth), s 13(1)(a)(iii).
943Mutual Assistance in Criminal Matters Act 1987 (Cth), s 12(3).
944Mutual Assistance in Criminal Matters Act 1987 (Cth), s 12(1)(b).
945Mutual Assistance in Criminal Matters Act 1987 (Cth), s 13(1)(ii).
946Courts (Remote Participation Act) 2010, s 5.
947Courts (Remote Participation Act) 2010, s 6(a).
948Courts (Remote Participation Act) 2010, s 6.