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 prosecution and for evidence to be taken in New Zealand at the request of a foreign country for a foreign proceeding. 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:
- in a New Zealand proceeding, the New Zealand court may direct that the giving of evidence, the examination of a person giving such evidence, or the making of submissions be done by audio or audio-visual link from Australia; and
- in an Australian proceeding, an Australian court may take evidence, or receive examination or submissions, from New Zealand by audio or audio-visual link.
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.
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”. Similarly, Australia can request that a person giving or producing evidence be examined or cross-examined in person or through video link. 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 evidence and for a foreign country to request that a tape recording be made of evidence taken in Australia.
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.
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 proceedings 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:
(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.
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?