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By Stuart Beresford [*]
On 11 December 1997, in response to the escalation of witness harassment and intimidation, the Government of New Zealand adopted the Evidence (Witness Anonymity) Amendment Act 1997 (hereinafter 'the Act'), this piece of legislation being the first enacted in a common law jurisdiction permitting witnesses to give testimony anonymously. The Act extends the existing powers for witness protection in New Zealand by enabling a witness to give evidence either at a pre-trial hearing or during High Court proceedings without having to disclose to the defendant his name, address or occupation. Nevertheless, as it conflicts with the general rule that 'in principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument',[1] the Act has been criticised as being a 'quick-fix solution' to the problem of witness intimidation.[2] It is feared that persons falsely accused of committing a crime will not be able to challenge properly the evidence against them, as they will not have the opportunity to know the identity of their accusers.[3]
Starting from the premise that the right to examine prosecution witnesses is one of the most crucial elements afforded to the defendant and that 'evidence obtained from witnesses under which the rights of the defence cannot be secured to the extent normally required' should be treated with extreme care,[4] this paper will assess how the right of vulnerable witnesses to be protected from intimidation and other forms of violence can be reconciled with the right to a fair trial. Through an examination of national case law and the judgments of regional and international judicial bodies, it can be ascertained that the use of anonymous witnesses is not inconsistent with the right to a fair trial. However, the obstacles imposed on the defendant must be sufficiently counterbalanced by the procedure followed by the judicial authorities: specifically, the court must be satisfied that there is a serious risk of harm to the witness, that the witness is not untrustworthy and that the proceedings as a whole are fair.
By examining the use of witness anonymity in New Zealand prior to its adoption, this paper will then demonstrate that at the time the Act came into force there was a growing willingness amongst the judiciary to permit vulnerable witnesses to give evidence anonymously. Although it was fast-
tracked through the legislature following the rendering of the Court of Appeal's decision in R v Hines,[5] the paper will establish that the procedure set out in the Act for the granting of witness anonymity orders closely follows that applied in overseas jurisdictions. It can therefore be determined that the safeguards provided to defendants will guarantee that any detriment they suffer through the non-disclosure of a witness's identity will not deprive them of a fair trial.
It should be noted that the availability of witness anonymity orders is not confined to the prosecution. According to the Act, both parties have the right to apply for such an order.[6] However, for the purposes of this paper, the discussions will focus on the use of witness anonymity orders by the prosecution.
The right to a fair trial is one of the most fundamental rights afforded to individuals by international human rights treaties, and is considered as holding a prominent place in a democratic society.[7] One the most important elements that makes up this right is the ability of the defendant to examine, or have examined, the witnesses against him.[8] If it were not for this right, the defendant would not be in a position to defend himself on equal terms with the prosecution. As enunciated by McMillin J in R v Hughes:[9]
An accused should be entitled to be confronted by his accusers, to know who they are, and what they say about him. He should be entitled to know, not merely what a witness says about him but how reliable that witness is. Knowledge of the true name of a witness may enable an accused to throw doubts on or undermine the value of his testimony.[10]
However, it has been recognised that this right is not absolute. The interest in the ability of the defence to establish facts has been balanced with the public interest in the maintenance of the law. National courts have acknowledged that the inability of the state to provide adequate protection to witnesses, particularly innocent bystanders and victims of crime, may weaken public confidence in the legal process and the criminal justice system as a whole.[11] As a consequence, they have ordered that the identities of witnesses not be disclosed to the public or the media, that traumatised witnesses be permitted to give evidence behind a screen or via closed circuit television in order to avoid direct confrontation with the accused, and that, in exceptional circumstances, the identities of witnesses not be disclosed to the accused or his defence counsel.
English courts have ruled - on the basis of their inherent jurisdiction - that the need of the defence to know the identity of a prosecution witness is outweighed in certain circumstances by the need to protect an intimidated witness. In R v DJX, SCY, GCZ,[12] the Court of Appeal upheld a lower court's decision to allow children to give evidence behind a screen. Lord Lane CJ stated:[13]
The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies. He came to the conclusion that in this case the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen.
In R v Watford Magistrates ex Parte Lenman,[14] the Queens Bench Divisional Court upheld the decision to allow several witnesses to an incident, where 'a group of youths rampaged through the Watford city centre violently attacking four people', to give evidence anonymously at the committal stage.[15] The Court found that if the witnesses had been required to disclose their identity there would have been a real risk to the administration of justice since they had serious concerns about their personal safety.
DJX, SCY, GCZ and ex Parte Lenman were both affirmed by the Court of Appeal in R v Taylor and Crabb.[16] Relying on the fact that the testimony of the witness in question was decisive to the prosecution case, the court upheld the decision of the trial court to grant the witness anonymity. Holding that "the fundamental right of a defendant to see and know the identity of his accusers, including witnesses for the Crown" should only be denied 'in rare and exceptional circumstances', Lord Justice Evans identified several various factors to which a trial judge, in exercising his discretion, must have regard:[17]
First and foremost, there must be real grounds for being fearful of the consequences if the evidence is given and the identity of the witness is revealed ... Secondly, the evidence must be sufficiently relevant and important to make it unfair to the prosecution to compel the prosecutor to proceed without it ... Thirdly, the prosecution must satisfy the court that the creditworthiness of the witness had been fully investigated and the results of that enquiry disclosed to the defence so far as is consistent with the anonymity sought. Fourthly, the court must be satisfied that no undue prejudice is caused to the defendant ... Finally, the court can balance the need for protection, including the extent of any necessary protection, against the unfairness or appearance of unfairness in the particular case.
The use of anonymous witnesses has been considered in two South African cases where the prosecution applied for non-disclosure of the true identities of former members of the African National Congress who were to appear as state witnesses. In S v Leeplie,[18] Ackermann J dismissed the application, on the basis that the granting of such an application would have dramatic consequences for the defendant. According to the judge, if the application was granted 'no investigation could be conducted by the [defendant's] legal representatives into the witness's background to ascertain whether he has a general reputation for untruthfulness, whether he has made previous inconsistent statements nor to investigate other matters which might be relevant to his credibility in general'.[19] Furthermore, it would be more difficult for the defendant 'to make enquires to establish that the witness was not at places on the occasions mentioned by him'.[20] Finally, the temptation to falsify or exaggerate evidence would be increased, as the witness's sense of impregnability would be heightened.[21]
However, in S v Pastoors[22] the court - after determining that there was a real risk of harm to the life of the witness - granted the request of the prosecution, finding that:[23]
In every case of this nature the Court is confronted by a conflict of interest. In resolving this conflict the Court must protect those interests which, on the facts of the particular case, weigh in favour of proper administration of justice. Such protection, if granted, should therefore not go further than is required by the exigencies of the case.
Australian courts have also considered the issue of witness anonymity. In R v The Stipendary Magistrates at Southpoint ex parte Gibson,[24] the Full Court of the Supreme Court of Queensland held that a witness's true identity must be disclosed to the defendant during committal proceedings and at trial. It considered that to hold otherwise would deprive the defendant of the opportunity to question the evidence against him.[25]
The Appeal Division of the Supreme Court of Victoria in Jarvie v The Magistrates' Court of Victoria at Brunswick[26] took a different approach. It upheld an order of a lower court to withhold the true identity of two undercover police officers from the defendant at the committal proceedings. The court stated that when deciding whether to grant anonymity the court must balance the competing public interests. Specifically, the court must ascertain whether there was a real danger of injury or death to the witness, whether there was a serious threat of physical harm, and the non- effectiveness of witness protection programmes. However, under no circumstances could the identity of a witness be withheld if there were good reasons to suppose that disclosure might materially assist the defendant establish some aspect of his case.[27]
In the United States of America, where the defendant's right to confront prosecution witnesses is constitutionally protected, courts have become more responsive to measures protecting the identity of vulnerable victims. In Alford v the United States,[28] the Supreme Court held that the trial court had abused its discretion by allowing a witness to give evidence without revealing his address.[29] This decision was later endorsed in Smith v Illinois,[30] where the Supreme Court held:[31]
...when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness's name and address open countless avenues of in- court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
In a separate opinion, White J, with whom Marshal J joined, supported the majority decision on the basis that the prosecution had not provided any reasons justifying the witness's refusal to answer questions concerning his identity. However, he emphasised that it 'may be appropriate to excuse a witness from answering questions about his or her identity if the witness's personal safety was endangered'.[32]
Although the issue of witness anonymity has not been referred to the Supreme Court following the Smith decision, a number of rulings at the State and Federal appellate level have endorsed the reasoning of White J.[33] In Alvarado v The Superior Court,[34] the Court of Appeal of California upheld the decision of the trial court to refuse disclosure to the defence of the names of three witnesses who were inmates of a prison to a murder. Balancing the defendant's right to a fair trial with the state's interest to protect witnesses, the court stated 'any witness, whether crucial or peripheral, faced with serious threats to his safety, regardless of their source, may be protected by carefully crafted discovery limits, narrowed to permit as much discovery and cross-examination as possible under the circumstances'.[35] Other courts have ruled that the threat to the witness's safety need not emanate from the defendant. In Clark v Lewis [36] anonymity was granted to a Drug Enforcement Agency informant on the basis that 'threats against his life had been made in the city where he lived, and [...] he still had cases pending in which he would give information'.[37]
2. Civil Law Jurisdictions
These examples all originate from common law systems where witnesses are questioned in front of the trier of fact - in more serious cases, the jury - who is responsible for evaluating the credibility of the evidence. In the civil law system, the investigating judge performs such evaluations, as he or she is responsible for examining the witnesses. As a consequence, if a witness is unable to give evidence during the trial, out-of-court declarations taken by the investigating judge may be submitted. Furthermore, witnesses who feel that their life will be endangered if they testify may be permitted to give evidence anonymously.[38]
In 1980 the Supreme Court of the Netherlands permitted the use of anonymous statements as evidence,[39] and in 1983 accepted statements from anonymous witnesses made only to the police and not the investigating judge.[40] However, following the rendering of the Kostovski v The Netherlands judgment of the European Court of Human Rights,[41] in its judgment of 2 July 1990 the Supreme Court ruled that the use of anonymous statements was only permissible if certain conditions were met - namely the statement was taken by a judge who was aware of the identity of the witness, the judge had expressed his or her reasoned opinion as to the reliability of the witness in an official report and the defence had been given the opportunity to examine the witness.[42] According to the same judgment, written documents containing the statement of an anonymous witness that do not satisfy these criteria could be used in evidence so long as the defence had not requested permission to examine the witness, corroborating evidence was available and the trial court treated the evidence with caution and circumspection.
On 11 November 1993 the Dutch government adopted an Act - which came into force on 1 February 1994 - legitimising the use of anonymous witnesses, subject to certain conditions.[43] According to the Act, national courts are only allowed to use anonymous statements if the defendant is charged with an offence punishable by a period of imprisonment of four years or more. However, a conviction cannot be based exclusively on the statements of anonymous witnesses.
40
The human rights institutions based in Strasbourg have developed a substantial amount of jurisprudence on the question of whether the use of anonymous witnesses is compatible with the fair trial provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[44] Article 6 of the Convention provides that 'in the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...'[45] and that 'everyone charged with a criminal offence has the following minimum rights: ... to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against
him'.[46]
From the rulings of the European Court of Human Rights, it is evident that the use of anonymous witnesses will only satisfy the fair trial principles contained in the Convention if certain strict requirements are met. In Kostovski,[47] the applicant's conviction was based to a decisive extent on statements made prior to trial by two anonymous witnesses. Discussing the impact of the use of anonymous witnesses, and the applicant's lack of opportunity to challenge and question the witnesses, the court observed:[48]
If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious.
The court noted that one of the anonymous witnesses was not heard by an examining judge but only by the police, and the examining magistrates who questioned the other anonymous witness were unaware of the person's identity. Furthermore, the trial courts were precluded by the absence of the anonymous witnesses from observing their demeanour under questioning and thereby were unable to form an impression of their reliability.
Commenting on the fact that at no stage was the reliability of the witnesses tested adequately, the court concluded that 'in these circumstances it cannot be said that the handicaps under which the defence laboured were counterbalanced by the procedures followed by the judicial authorities'.[49] In its opinion:[50]
The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction ... is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6.
In Ludi v Switzerland[51] - where the applicant was convicted on the basis of a written statement of an undercover police officer - the court formulated its position on the use of statements made by anonymous witnesses. The court stated:[52]
According to the Court's consistent case law, all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 3(d) and 1 of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage.
On the basis that neither the investigating judge nor the trial court was able to hear the officer, and that the applicant and his counsel were deprived of an opportunity to question him, the court found a violation of Article 6 (3)(d). Nevertheless, the court observed that it would have been possible for the defence to have been provided with an opportunity to question the officer 'in a way which took into account the legitimate interest of the police authorities, in a drug trafficking case, in preserving the anonymity of their agent, so that they could protect him and also make use of him again in the future'.
Witness anonymity was next discussed in Doorson v The Netherlands,[53] where the court reiterated that the use of statements taken during the investigation from anonymous informants to found a conviction was capable of raising issues under the Convention. However, the court held that, although Article 6 did not require that the interests of witnesses be taken into account, their life, liberty or security of person might be at stake, as may their right to privacy under Article 8. Contracting states must therefore organise their criminal proceedings in such a manner to ensure that these interests are not unjustifiably imperilled. The fair trial principles required that in appropriate cases the interests of the defence must be balanced against those of witnesses called upon to testify.[54]
Balancing the competing interests, the court found that although the applicant's conviction for drug trafficking was based on evidence supplied by anonymous witnesses - who had not been heard in his presence and whom he did not have the opportunity to question - he was not overly
prejudiced by the use of such testimony. In particular, the witnesses had been questioned by an investigating judge who was aware of their identity, the court had been able on account of the report of the investigating judge to assess the reliability of the witnesses, the applicant's counsel had been offered the opportunity to question the witnesses on matters not related to their identity, and the conviction of the applicant was not based solely or to a decisive extent on the evidence of the anonymous witnesses.[55]
In Van Meechan v The Netherlands,[56] the applicants' convictions for attempted manslaughter and murder were based, essentially, on the uncorroborated evidence of anonymous police officers, who were not heard in public or in the presence of the applicants or their counsel. The court found that the proceedings against the applicants, taken as a whole, were unfair. Since the police officers were not questioned in the same room as the applicants or their counsel, the defence was prevented from observing their demeanour and thus testing their reliability.[57] Reiterating that measures restricting the rights of the defence must be strictly necessary, the court held that the operational needs of the police - to preserve the usefulness of the undercover police officers - did not provide sufficient justification for the restrictive measures applied.[58] Moreover the court was not satisfied that the national courts made sufficient effort to assess the threat of reprisals against the police officers and their families.[59]
The issue of witness anonymity has been considered in two decisions rendered by the International Criminal Tribunal for the Former Yugoslavia [hereinafter 'the International Tribunal'].[60] Article 21 of its Statute guarantees to an accused person 'a fair and public hearing', including the right 'to examine or have examined, the witnesses against him'. However, such rights must be balanced against other rights. Article 22 states that the rules of procedure and evidence of the International Tribunal shall provide for the protection of victims and witnesses, including but not limited to, the use of in camera proceedings and the protection of the identity of victims.[61]
On 18 May 1995, the prosecution filed a motion in the case of The Prosecutor v Tadic seeking various protective measures for witnesses, including anonymity.[62] The defence acceded to the majority of the measures requested but objected to the request for anonymity, arguing that such a measure would infringe upon the right of the accused to a fair and public trial.[63]
Although it acknowledged the general principle that 'all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument', the majority of the Trial Chamber - after examining the general principles of international law, as well as the special circumstances 'under which the International Tribunal operated' - stated that 'the interest in the ability of the defendant to establish facts must be weighed against the interest in the anonymity of the witness ...a fair trial means not only fair treatment to the defendant but also to the prosecution and witnesses'.[64] The Chamber then went on to establish general criteria that must be met to justify an order for anonymity.[65] There must be a real fear for the safety of the witness and the testimony of the witness must be sufficiently relevant and important to the case.[66] There must be no prima facie evidence that the witness is untrustworthy in any way.[67] The effectiveness or non-existence of a witness protection programme and the unavailability of less restrictive protective measures must also be taken into account when deciding whether to grant anonymity to a witness.[68]
The Chamber also held that there must be procedural protections in place to counterbalance the acknowledged restriction to the rights of the accused.[69] These include ensuring that the judges can observe the demeanour of the witness, that the judges know the identity of the witness, that the defence be allowed to question the witness on issues unrelated to identity or current whereabouts and, finally, the identity of the witness must be revealed when there are no longer reasons to fear for the security of the witness.[70]
In his dissenting opinion, Stephen J asserted that the rules under which the International Tribunal operated gave no support for anonymity of witnesses at the expense of fairness and the rights of the accused as guaranteed by Article 21.[71] Stephen J recognised the need to protect witnesses in order to avoid possible social consequences of becoming generally known in their communities as victims of crime and to protect them from the acute trauma of facing the perpetrator of such offences in court. However, he suggested that these concerns could be satisfied by measures falling short of any wholesale anonymity of witnesses namely the use of in camera proceedings and the careful control of cross- examination.[72]
The Tadic decision has provided the yardstick against which the International Tribunal has applied protective measures to witnesses in subsequent cases. In a decision rendered on 2 October 1996, The Prosecutor v Blaskic, a different Trial Chamber concurred with the dissenting opinion of Stephen J that the statute did not authorise the use of anonymous witnesses where it would impact on the rights of the accused to receive a fair trial.[73] Nevertheless, the Chamber did not exclude the possibility that a witness could give testimony anonymously provided that the five conditions set out in the Tadic decision were satisfied.[74]
During the past decade, there has been an increased reluctance by members of the New Zealand public to become involved as witnesses. On a number of occasions either the defendants themselves or their fellow associates have attempted to dissuade witnesses from testifying for the prosecution or from answering questions leading to the conviction of the defendants concerned either through direct, illegal pressure or through the
creation of an atmosphere of pressure, particularly in gang-dominated regions. In one of the worst examples to date, a witness who was scheduled to give evidence at the trial of three gang members charged with wounding with intent to cause to grievous bodily harm was murdered by four of their associates.[75] Previously, at the preliminary hearing, the witness had identified the three defendants as being responsible for the attack.[76]
The courts have not ignored the effect that the prevalence of witness harassment and intimidation has on the criminal justice system. In Hines, Thomas J commented that the administration of justice is undermined whenever serious criminal offenders are acquitted, not because they are innocent but because, by indulging in further criminal activity, they are able to frustrate the legal order. He observed:[77]
...the very knowledge that the Court will not admit the evidence of a witness who will not disclose his name for fear of retribution can be expected to exacerbate the problem. Criminals will know that if they can frighten a witness and dissuade him or her from giving evidence the Crown will, in the absence of other evidence, be obliged to forego the prosecution. This knowledge will stimulate its own reaction. Those of a criminal and violent bent will not be slow to perceive that they can secure their freedom, not by obtaining an acquittal after a properly constituted and conducted trial, but by intimidating potential witnesses and avoiding the trial altogether or weakening the prosecution case against them.
As a consequence of these events, during the past decade and a half the courts have entertained applications for witness anonymity on several occasions. The leading authority is the Court of Appeal decision in Hughes. The case concerned the issue of whether, when giving evidence at a drug dealing trial, undercover police officers were required to disclose their true identities. The majority answered this question in the affirmative. Richardson J concluded:[78]
Clearly the accused cannot be assured of a true and full defence to the charge unless he is supplied with sufficient information about his accuser in order to decide on investigation whether his credibility should be challenged. In principle then information as to the identity ordinarily assumed by a prosecution witness is relevant to any issues of credibility and so is prima facie material to the defence of a criminal charge.
The court considered that any balancing of the public interest in the protection of witnesses and the fair trial guarantees provided to the accused must be undertaken by Parliament. Richardson J observed:[79]
we would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial.
A minority of two judges dissented, holding that the courts did have the inherent authority, in appropriate cases, to grant anonymity if such a measure would not, in the circumstances, unduly prejudice the accused. Cooke P concluded:[80]
The undercover officer should not be compelled to state his true name unless the presiding Judge is satisfied that it is of such direct or indirect relevance to facts in issue that to withhold it would be contrary to the interests of justice.
In this connection, Cooke P found that, in order to justify disclosure, the defence need only satisfy to the judge 'that the truth of the evidence of the undercover officer on a material matter of fact is genuinely in issue on substantial grounds: and that there accordingly arises a serious question as to the officer's credibility upon which it might be helpful to the defence to have his true name'.[81] If such grounds are established, the judge must direct the prosecution to disclose the true identity of the witness.
In response to the majority decision in Hughes, the Government at the time enacted section 13A of the Evidence Act 1908. This provision permits undercover police officers to give evidence without stating their true name or address, so long as the procedures specified in the section are complied with. The protection is only available to undercover police officers giving evidence in cases involving certain drug offences or any offence tried on indictment attracting a maximum penalty of at least seven years imprisonment.
The prescribed procedure requires the Commissioner of Police to certify whether or not the undercover officer has any convictions or has been found guilty of any disciplinary offence or, to the knowledge of the Commissioner, there has been any adverse comments by any judicial officer in respect of the undercover officer's evidence.[82] Once the certificate is lodged, the judge may grant leave for the witness to be questioned about his or her identity only if satisfied that:[83]
there is some evidence before the judge that, if believed by the jury, could call into question the credibility of the witness; and
it is necessary in the interests of justice that the accused be enabled to test properly the credibility of the witness; and
it would be impracticable for the accused to test properly the credibility of the witness if the accused were not informed of the true name or the true address of the witness.
Following the adoption of section 13A, several applications were made to the High Court for prosecution witnesses who were not undercover police officers to give evidence anonymously. In R v Mcintosh[84] the Crown applied at the preliminary hearing for an order to withhold the names and addresses of certain witnesses. However, Holland J dismissed the application. He reasoned that although a court could make an order prohibiting the publication of names and identifying details of witnesses, it could not make such an order in exercise of its inherent jurisdiction or any rule of law.[85]
However, in Police v Stevens,[86] Moore J allowed a witness to give testimony at the preliminary hearing from behind a screen so that he was not visible to the defendants. This order supplemented an earlier order made by Judge Joyce QC that the prosecution did not have to disclose the names and addresses of certain witnesses to the defence.
Subsequently, in a pre-trial decision in R v Coleman [87] , Baragwanath J ruled that evidence could be given anonymously by a witness who feared that the defendants or their associates would harm himself or his family. His Honour concluded:[88]
...it is consistent both with the basic principles that underlie the common law and with the current needs of New Zealand society that the Court should accept jurisdiction to permit anonymous evidence in the very rare cases where:
i. the evidence is critical to whether the trial can take place at all;
ii. the Court is satisfied that there is no substantial reason, following due inquiry, to doubt the credibility of a witness;
iii. the Court is satisfied that justice can be done to the accused by the conduct of the trial and suitable directions to the jury at its conclusion;
iv. the Court is of the opinion that the public interest in the case proceeding to trial against the particular accused outweighs the disadvantages of that course.
In R. v Brown,[89] Moran J - without referring to any authorities - granted a pre-trial application of the prosecution requesting, inter alia, name suppression of certain witnesses, although it should be noted that the defence had conceded that the witnesses could give evidence anonymously.[90] In a later case, R v Quack[91] , Tompkins J also considered that the court had the inherent jurisdiction to permit a witness to give evidence anonymously. However, the Crown's application was not granted as it was considered too late to have any practical effect.[92]
In R v Hines, the Crown sought anonymity for a witness who observed the crime allegedly committed by the defendant. At trial, Ellis J held that he was bound by the majority decision in Hughes and accordingly ruled that the witness must disclose his name and occupation if asked.[93] The witness was not called and, as there were serious doubts that justice could be done, the trial was aborted. A new trial was ordered.
The defence again requested the name, address and occupation of the witness. The Crown declined, whereupon the defence applied for a discharge. The Crown responded by filing an application for an order that at the trial of the accused the witness would not be required to disclose his name, address and occupation. Concluding that the minority judgments in Hughes and the decision in Coleman represented the law in New Zealand, Williams J ruled that the court had 'a discretion arising out of its inherent jurisdiction to direct, in proper cases, that a witness may be excused, if asked, from stating his or her correct name, address and occupation when giving evidence in a criminal case.'[94] His Honour granted the Crown's application as he considered that the witness had a genuine fear of retaliation if details relating to his identity were revealed. The issue was further raised before the trial judge, Neazor J, who adopted the judgment of Williams J and allowed the witness to give evidence anonymously.[95] The defendant was found guilty of wounding with intent to cause grievous bodily harm and sentenced to six years imprisonment.
On appeal against conviction, the Court of Appeal considered that the central question was 'whether the trial judge erred in law in allowing a key witness for the prosecution to give evidence without disclosing his name and address.'[96] The majority answered this question in the affirmative, and ordered a re-trial. Richardson P and Keith J held that it was not for the court 'to depart from the majority decision in Hughes and develop a new common law rule allowing courts to grant anonymity to witnesses.'[97] They emphasised that the majority had held that information about the identity of a prosecution witness was relevant to issues of credibility, is prima facie material to the defence of a criminal charge and accordingly must be disclosed to the defence. In their opinion, it was significant that Parliament - when adopting s13 (A) of the Evidence Act 1908 - did not adopt the approach taken by the minority in Hughes and permitted undercover police officers to give evidence anonymously only in limited situations and only when certain procedures and protections had been satisfied.
Although he agreed that it was not the time to make such a fundamental change in the law, Blanchard J considered that if Hughes were to be re- considered, he would depart from the majority decision and permit a prosecution witness to withhold his identity:[98]
...if the Court determines, after independent investigation conducted on its behalf and a voir dire, (a) that the trial will remain fair to the accused and (b) that the revelation of the witness's identity will place the witness or any other person at serious risk of physical harm.
The minority found that, in certain circumstances, a trial judge should be able to permit a witness to give evidence anonymously. Gault J considered that an absolute rule proclaiming that the interests of justice would not be served unless the identity of witnesses was disclosed would be 'merely an invitation for intimidation of witnesses'. He reasoned that it would be possible for there to be a fair trial - fair both to the accused and to the public - without the disclosure of the identity of the witness.[99] Setting out the requirements that would have to be established in order for a witness to give evidence anonymously, Thomas J stated:[100]
In the first place, the Judge would need to be satisfied that the witness or other persons will be exposed to the risk of serious physical harm if the witness testifies. The witness's fear of such harm must be reasonable and justified. The Judge will need to consider whether other means are reasonably available to protect the witness from harm. I would leave open to another time the question whether a reasonably held fear of damage to property would suffice. I do not doubt that the treat of having one's car blown up would be seriously intimidating for most people. For the present, however, the requirement of serious physical harm to the witness or others can be accepted as an essential prerequisite. In the second place, the Judge would need to be satisfied that an order permitting a witness to withhold his or her identity would be in the interests of justice. A number of factors discussed in this judgment would be relevant to this question. In particular, as indicated in respect of undercover police officers in s 13A (7), a Judge will not be amenable to making an order if the witness's name and address is genuinely being called in question, and the name and address of the witness is necessary to permit the accused to test properly the credibility of the witness. At all times the Judge will need to be satisfied that the witness's anonymity would not deprive the accused of a fair trial.
In 1996 the New Zealand Law Commission - concerned about the lack of substantial research into the use of witness anonymity orders - began investigating the use of such orders in New Zealand as part of its general review and codification of the law of evidence. Following the rendering of the Court of Appeal's decision in Hines, the Law Commission completed its research expeditiously recommending, inter alia, that legislation be enacted enabling witnesses in certain circumstances to give evidence anonymously.[101] On the basis of these recommendations, on 21 October 1997 the Minister of Justice, Hon D Graham, introduced the Evidence (Witness Anonymity) Amendment Bill to Parliament. Acknowledging that certain people would find it contentious, the Minister of Justice argued that the Bill struck a fair balance between the right of the accused to receive a fair trial and the right of witnesses to give evidence without fear of intimidation or retaliation. The Evidence (Witness Anonymity) Amendment Act (hereinafter 'the Act') - which is part of the Evidence Act 1908 - was duly enacted on 11 December 1997.
The Act enables the prosecution to apply for an order excusing a witness from disclosing to the defendant his or her name, address and occupation or any other particulars likely to lead to the witness's identification at either the pre-trial stage of the proceedings or during a trial in the High Court.[102] An anonymity order - which is available only in indictable offences[103] - may be granted if, after hearing the parties, the judge believes on reasonable grounds that there is a real risk that the safety of the witness or any other person will be endangered or that there will be serious damage to property.[104]
The judge must also be satisfied either that there is no reason to believe that the witness has a motive or tendency to be untruthful,[105] or that the witness's credibility can be tested properly without disclosure of his or her identity.[106] Finally, the judge - having regard to a number of specified factors - must be satisfied that the order would not deprive the accused of a fair trial.[107]
Since its adoption, a number of witness anonymity orders have been made in respect of evidence to be given at preliminary hearings. Despite the fact that it appeared that the accused knew her name, in R v Dunnill[108] the Crown applied for an order to protect the identity of a witness who could provide crucial testimony against the accused, who were jointly charged with wounding with intent to cause grievous bodily harm.[109] Young J determined that if the identity of the witness was disclosed, her safety was likely to be endangered and there was no reason to suppose that her evidence would be untrustworthy. However, given that the accused knew the name of the witness, there was, in his opinion, no particular reason why her name could not be given in open Court. The making of the order in these circumstances was therefore considered inappropriate.[110]
The adoption of the Act has provided the Crown with an avenue through which vulnerable witnesses will be able to give testimony either at committal proceedings or during High Court trials. Although it will not prevent an astute defendant or his or her associates from making discreet inquiries into the identity of anonymous witnesses,[111] the Act will ensure that the societal interest in safeguarding the lives of such witnesses is preserved. Nevertheless, given the effects that the granting of anonymity orders will have on the ability of the defendant to test the evidence against him or her, the power of the judge to make such orders must be exercised fairly. Only in exceptional circumstances should the judge restrict the right of the defendant to examine or have examined prosecution witnesses.
Although witness harassment and intimidation are not confined to serious crime, the availability of anonymity orders is limited to indictable offences. Furthermore, despite the fact that the District Court has jurisdiction to deal with a wide range of offences, only the High Court has the power to make such an order.[112] These requirements, in the opinion of the author, recognise the serious consequences that the granting of an anonymity order will have on the rights of the defendant. In this connection, it has been opined that the interference with the rights of the defendant through the use of anonymity orders is 'comparable to the invasion of bodily integrity by the compulsory taking of blood samples ...which may be performed only by the authority of an order of a High Court judge'.[113] With regard to the latter requirement, such a restriction will not only ensure that a consistent approach is taken towards their use but also guard against arbitrariness.
In addition to limiting the type of offences for which anonymity may be sought, the Act sets out a rigid and lengthy procedure by which the competing interests are weighed. The judge must satisfy himself that three requirements are met: namely risk of harm, witness credibility and procedural fairness. These requirements are derived from the sizeable body of national case law and the judgments of the European Court of Human Rights and the International Tribunal.
The first requirement that the witness or some other person will be exposed to the risk of serious harm if the witness gives evidence is understandable: 'there must be real grounds for being fearful of the consequences'.[114] While there must be reasonable and justified basis to underscore the feeling of fear,[115] the risk of fear need not emanate from the defendant. Moreover, there need not be an actual threat against the life of a witness. As discussed, associates of the defendant, especially in gang- dominated regions, may create an atmosphere of fear that dissuades members of the public from giving evidence.
In Australia, in order for anonymity to be granted, the consequential effects of testifying must be extreme; namely death or serious physical harm to the witness.[116] The Act takes a broader approach to the risk of harm. Anonymity may be granted not only when there are reasonable grounds to believe that the safety of the witness or any other person will be endangered, but also where serious damage to property is likely. While this test extends beyond immediate family members to include friends and business partners as well as distant relatives, and covers damage to moveable and immovable property, given the severe restrictions that are entailed by the granting of such an order the courts should refrain from expanding the test to include secondary, or incidental damage such as loss of goodwill, future earning capacity or enjoyment of lifestyle.[117]
The second requirement relates to the credibility of the witness. Before granting a witness anonymity order the judge must be satisfied that no information has been presented which casts doubt on the reliability or truthfulness of the witness. As stated in the Tadic case:[118]
There should be no grounds for supposing that the witness is not impartial or has an axe to grind. Nor can non-disclosure of the identity of a witness with an extensive criminal background or of an accomplice be allowed. Granting anonymity in these circumstances would prejudice the case of the defence beyond a reasonable degree.
Although he is not required to form a personal view as to the credibility of the witness, the judge must take into account the relationship with the accused or any associates of the accused and the witness's criminal record. In its recommendations to the Government, the Law Commission proposed that judges should also take into account whether the defendant knew the witness previously and any interest that the witness may have in the outcome of the proceedings.[119] Given the handicaps under which the defendant will labour, it is surprising that these recommendations were not adopted.
Under the third requirement the court must be satisfied that the unfairness to the witness through the disclosure of their identity exceeds the possibility of unfairness to the defendant. The European Court of Human Rights has repeatedly observed that what is important is not that witness anonymity is granted but 'whether the proceedings as a whole were fair'.[120] Article 13C(5) of the Act identifies six mandatory, although not exhaustive, factors which the judge must have regard to when making this assessment. According to sub- paragraphs (a) and (b) the judge must have regard to the general right of the accused to know the identity of the witness and that such information should only be withheld in exceptional circumstances.[121] In Jarvie, Brooking J observed:[122]
...the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution . whatever the strength of the case in favour of non-disclosure, it cannot prevail . the right to a fair trial must not be substantially impaired.
In this connection, a judge should not exempt a witness from providing his or her name, address and other identifying details to the defendant if such details are crucial to determination of the credibility of the witness.[123]
According to the third factor, the judge must take cognisance of the gravity of the offence with which the defendant is charged.[124] In the examples cited, witness anonymity was granted only in trials involving serious
offences. In Hughes the defendant was charged with drug dealing, while in Hines the defendant was charged with alternative counts of attempted murder and wounding with intent to cause grievous body harm. In the cases of Taylor and Alvarado the defendants were charged with murder.
The fourth consideration[125] derives from Taylor in which the English Court of Appeal stated that the testimony of the witness must be 'sufficiently relevant and important to make it unfair to the prosecution to compel the prosecutor to proceed without it'.[126] In that case, the evidence of the witness was decisive to the prosecution's case as it provided the only independent corroboration of the removal of the victim's body from the public house where the murder was alleged to have occurred. However, in the view of the author, requiring the judge to decipher the importance of the witness's evidence prior to hearing it may prove too arduous a task, especially if the services of independent counsel are not employed.[127] In this connection, the International Tribunal held in Blaskic that:[128]
[the] Trial Chamber cannot rely entirely on the Prosecutor who asserts the importance of [the witnesses' testimony]. The assertion must be supported by objective elements in respect of specific charges and, if necessary, independent proof.
The judge must next consider whether other reasonably available means exist which afford sufficient protection to the witness.[129] The European Court of Human Rights has repeatedly emphasised that the measures restricting the defendant's rights should be strictly necessary: 'if a less restrictive measure can suffice then that measure should be applied'.[130] It is imperative that before granting an anonymity order, the judge must be satisfied that the defendant suffers no undue avoidable prejudice. If such prejudice is likely to occur, anonymity should not be granted. In this connection, despite the fact that the Jarvie and Tadic rulings were heavily influenced by the unavailability of witness protection programmes, it is submitted that given the consequences to a witness if a fully fledged witness protection programme is implemented - namely change of identity, relocation either internally or internationally, and a substantial severing of connections with family, friends and support networks - the availability of such programmes should not be a barrier to the granting of an order.[131]
The final factor the judge must consider is whether there is other evidence that corroborates the testimony of the witness.[132] Given that a defendant who is deprived of an opportunity to test the reliability of uncorroborated evidence is confronted with 'an almost insurmountable handicap'[133] , the
courts must ensure that 'a conviction should not be based either solely or to a decisive extent on anonymous statements'.[134]
In order to safeguard the interests of the defendant, the Act provides for the appointment of an independent counsel to assist the judge inquire into the credibility of the witness and the risk of harm to which he or she will be exposed.[135] In order to ascertain whether the witness is reliable and truthful, the independent counsel must be provided with the name, address and occupation of the witness and must have access to all information relating to the witness in the possession of the prosecution,[136] whether or not such information would be admissible at trial.[137] In this connection, it is crucial to the determination of credibility that the independent counsel is also given the opportunity to either question directly or put questions to the witness.
Given the consequences that the granting of an anonymity order has on the rights of the defendant, it is somewhat surprising that the use of independent counsel was not made mandatory. As recognised by the Law Commission:[138]
The role of independent counsel is crucial to the judge's inquiry into the reliability and truthfulness of the witness and therefore the risk that injustice will occur if effective cross- examination on these matters does not take place. In essence, independent counsel is appointed to do what the defence counsel would ordinarily - but cannot - do.
Only the independent counsel is authorised to examine the police files and other pieces of background information relating to the credibility of the witness in the possession of the prosecution. The inquiry of the judge is limited to the application submitted by the prosecution and the information contained therein. Consequently, any decision dispensing with independent counsel should be carefully considered.
Over the last decade and a half, the degree to which defendants, and their associates, have gone to harass, intimidate or otherwise dissuade potential prosecution witnesses from giving evidence provides chilling reading. Both the New Zealand courts and the legislature have responded to this very serious, pressing issue by enabling vulnerable witnesses to give testimony in circumstances which will not expose them to acts of retribution. With the recent adoption of the Act, such witnesses may now, in certain circumstances, be exempted from disclosing their name, address and other identifying details from the defendant. However, while the use of anonymity orders will go a long way to reduce the fear of giving evidence, the enduring importance of the Act rests on its reinstatement and endorsement of the international standards for a fair trial. In this connection, it has been established clearly that the use of anonymous testimony to found a conviction is not under all circumstances incompatible with the fair trial guarantees of international human rights treaties.
Through an examination of the sizeable body of national case law and the judgments of regional and international judicial bodies, it is clear that these sources had a major influence on the drafters of the Act. The three requirements that must be satisfied in order for anonymity to be granted - risk of harm, credibility and fairness - were all identified by Lord Evans in Taylor as being essential to safeguard the rights of the defendant. Such requirements - which have been endorsed by the International Tribunal and applied in various domestic decisions - will not only guarantee that that the handicaps under which the defendant labours are sufficiently counterbalanced by the procedures followed by the judicial authorities, but will also ensure that the conviction is not based either entirely or to a significant extent on anonymous testimony.
It is imperative that the judiciary does not yield to expediency and grant anonymity orders without examining these requirements carefully and exploring all available alternatives. Furthermore, even after an order is granted, the court should not be afraid to withdraw the protection offered to a witness if the circumstances that justified the granting of the order are no longer applicable. Similarly, should information come to light subsequently that casts substantial doubt on the credibility of the witness's evidence, the presiding judge should strike the testimony from the record and instruct the jury appropriately.[139] Only by taking such a cautious approach will the courts truly ensure that the balance of fairness is not tilted too heavily against the defendant.
[*] The author is currently employed at the International Criminal Tribunal for the Former Yugoslavia as an Associate Legal Officer. The views expressed herein are those of the author alone and do not necessarily represent those of the United Nations.
[1] Kostovski v The Netherlands, ECHR, 23.5.89, Ser A, n 166, para 41.
[2] See "Secret Witness Law 'Erodes Liberties'", The Otago Daily Times, 12 December 1997.
[3] Ibid.
[4] Doorson v The Netherlands, ECHR, 26.3.96, Ser A, n 330, para 76.
[5] R v Hines [1997] NZCA 123; [1997] 3 NZLR 529.
[6] See Articles 13B (pre-trial orders for anonymity) and 13C (High Court trials).
[7] De Cubber v Belgium, ECHR, 26.10.84, Ser A, n 86, para 30.
[8] See Art 14(3)(e) of the International Covenant of Civil and Political Rights, Art 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Art 8(2)(f) of the American Convention on Human Rights.
[9] R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129.
[10] Ibid at 152.
[11] NA Demleitner, "Witness Protection in Criminal Cases: Anonymity, Disguise or Other Options?" (1998) 46 American Journal of Comparative Law 641 at 660.
[12] R v DJX, SCY, GCZ (1990) 91 Cr App R 36.
[13] Ibid at 39.
[14] R v Watford Magistrates ex Parte Lenman [1992] Times LR 285; [1993] Crim LR 388.
[15] Ibid. The names of the witnesses had been withheld from the defence and, while giving evidence they were screened from the accused (but not their counsel) and their voices were distorted. See also New Zealand Law Commission Discussion Paper Evidence Law: Witness Anonymity, NZLC PP29 (1997), A9.
[16] R v Taylor and Crabb [1994] Times LR 484; [1995] Crim LR 253.
[17] Ibid. The factors set out in Taylor have been recently examined and approved by Beldam LJ and Smith J in R v Liverpool City Magistrates Court ex parte Director of Public Prosecutions, 19.7.1996, CO 1148/96.
[18] S v Leeplie 1986 (4) SA 187 (W).
[19] Ibid at 189.
[20] Ibid.
[21] Ibid.
[22] S v Pastoors 1986 (4) SA 222 (W).
[23] Ibid at 226, quoted in Discussion Paper, op cit n 15, at A 22.
[24] R v The Stipendary Magistrates at Southpoint ex parte Gibson [1993] 2 Qd R 687.
[25] Ibid at 690-694.
[26] Jarvie and Another v The Magistrates' Court of Victoria at Brunswick and Others [1995]
[1] VR 84.
[27] Ibid at 90-91.
[28] Alford v the United States [1931] USSC 32; 282 US 687 (1931).
[29] Ibid at 692.The Supreme Court held that to ascertain the truthfulness of a witness the defence must be able to place him in his environment:
"Prejudice ensures from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise him." See also Demleitner, op cit n 11, at 650. 30 Smith v Illinois 390 US 129 (1968).
[31] Ibid at 131.
[32] Ibid at 133-134.
[33] See, amongst other authorities, United States v Palermo [1969] USCA7 131; 410 F. 2d 468 (7th Cir. 1969),
United States v Saletko [1972] USCA7 85; 452 F. 2d 193, 196 (7th Cir. 1971) 405 U.S. 1040 (1972), State v Hassberger 350 So 2d 1, 3-4 (Fla 1977), Clark v Ricketts [1992] USCA9 544; 958 F. 2d 851, 855 (9th Cir. 1991).
[34] Alvarado v The Superior Court 52 Cal App 4th 939 (1997).
[35] Ibid at 957.
[36] Clark v Lewis 506 U.S. 838 (1993).
[37] Quoted in Demleitner, op cit n 11, at 651.
[38] The Danish Supreme Court has held that witnesses are not required to testify if their life will be endangered should they give evidence. However, if they choose to do so, their name, address and other identifying details may be withheld from the defence. J Andersen, "The Anonymity of Witnesses: A Danish Development" (1985) Criminal Law Review 363. Similarly, in Germany witnesses who give evidence in security cases may do so anonymously. In such cases, their testimony - which may consist of answers to questions prepared previously by the trial judges - will be given to the court by a police officer. However, culpability cannot be based solely on such testimony. H Reiter, "Hearsay Evidence and Criminal Process in Germany and Austria" [1984] MonashULawRw 3; (1984) 10 Mon LR 51. Both these articles have been cited in C Chinkin, "International Criminal Tribunal for the Former Yugoslavia: Amicus Curiae Brief on Protective Measures for Victims and Witnesses" (1996) 7 Criminal Law Forum 179 at 199.
[39] HR, 5 February 1980, [1980] Nederlande Jurisprudentie (NJ), no 319.
[40] HR, 28 November 1983, [1984] NJ no 476.
[41] See Kostovski v The Netherlands, ECHR, 23.5.89, Ser A, n 166.
[42] Judgment of 2 July 1990, [1990] NJ, no 692.
[43] Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no 603.
[44] As regards the fair trial provisions of the Convention, see, amongst other authorities, P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (Kluwer, Deventer, 3rd ed, 1998), pp391-419; M Janis, R Kay and A Bradley, European Human Rights Law (Clarendon Press, Oxford, 1996), Chapter 9; D Gomien, D Harris and L Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (Council of Europe, Strasbourg, 1996), pp151-202; DJ Harris, M O'Boyle and C Warbrick, Law of the European Convention on Human Rights (Butterworths, London,1995), Chapter 6; P Kempees, A Systematic Guide to the Case- Law of the European Court of Human Rights 1960-1994 (Martinus Nijhoff, The Hague, 1996) Vol 1, pp141-503; P Kempees, A Systematic Guide to the Case-Law of the European Court of Human Rights 1995-1996 (Martinus Nijhoff, The Hague, 1998) Vol III, pp69- 191; S Stravros, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights (Martinus Nijoff Publishers, Dordrecht, The Netherlands,
[1993] ).[45] The European Convention for the Protection of Human Rights and Fundamental Freedoms,
Art 6(1).
[46] Ibid at Art 6(3)(d).
[47] Kostovski v The Netherlands, ECHR, 23.5.89, Ser A, n 166. 48 Ibid at para 42.
[49] Ibid at para 43.
[50] Ibid at para 44.
[51] Ludi v Switzerland, ECHR, 15.6.92, Ser A, no 238.
[52] Ibid at para 47.
[53] Doorson v The Netherlands, ECHR, 26.3.96, Ser A, n 330.
[54] Ibid at para 70.
[55] Ibid at paras 73-76.
[56] Van Mechelen v The Netherlands, ECHR, 23.4.97, Ser A, no 674.
[57] Ibid at para 59.
[58] Ibid at para 56. The court distinguished the Doorson judgement on the basis that the interests of members of the police force of a State were different to those of disinterested witnesses or the victims of crime. In its opinion, police officers 'owe a general duty of obedience to the State's executive authorities and usually have links with the prosecution'.
[59] Ibid at para 60.
[60] The International Tribunal was established by Security Council Resolutions 808 (1993) 22 February 1993 (deciding in principle to establish the International Tribunal) and 827 (1993) 25 May 1993 (establishing the International Tribunal). For information on the establishment of the International Tribunal see, amongst other authorities, M Cherif Bassiouni, "Former Yugoslavia: Investigating Violations of International Humanitarian Law and establishing an International Criminal Tribunal" (1994) 25 Security Dialogue 409; J O'Brien, "The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia" (1993) 87 American Journal of International Law 639; RA Kolodkin, "An Ad Hoc International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law in the Former Yugoslavia" 5 Criminal Law Forum (1995) [381]
[61] As regards the interpretation of Articles 21 and 22 of the Statute, see J Jones, The Practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda (Transnational, Irvington-on-Hudson, 1998), pp 100-106; AC Lakatos, "Evaluating the Rules of Procedure and Evidence for the International Tribunal in the former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights" 46 Hastings Law Journal (1995) [909]
[62] The Prosecutor v Tadic, Case No IT-94-1-T, Motion Requesting Protective Measures for Victims and Witnesses, 18.5.95.
[63] The Prosecutor v Tadic, Case No IT-94-1-T, Response to the Motion of the Prosecutor Requesting Protective Measures for Victims and Witnesses, 2.6.95
[64] The Prosecutor v Tadic, Case No IT-94-1-T, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10.8.95, para 55.
[65] For guidance as to the factors that should be taken into account when granting anonymity, the Trial Chamber relied principally on the decision of the English Court of Appeal in Taylor and the decision of the Supreme Court of Victoria in Jarvie. See N A Affolder, "Tadic, The Anonymous Witness and the Sources of International Procedural Law" 19 Michigan Journal of International Law (1998) 445 at 458; M Momeni, "Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An Examination of the Anonymity Rules of the International Tribunal for the Former Yugoslavia" 41 Howard Law Journal (1997) 155 at164-168.
[66] The Prosecutor v Tadic, Case No IT-94-1-T, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10.8.95, paras 62-63.
[67] Ibid at para 64.
[68] Ibid at para 65-66.
[69] The guidelines - which are intended to 'redress any diminution of the right to a fair trial' - are taken from the Kostovski judgment of the European Court of Human Rights. Affolder, op cit n 65, at 459
[70] Tadic Decision, op cit n 64, at para 71. Of the four witnesses granted anonymity, two were not called to give evidence and one testified in open session without any protective measures. The remaining witness was heard in closed session and was shielded from the view of the accused but not his counsel. The written transcript of the testimony of the anonymous witness was subsequently released by order of the Trial Chamber, after review by the prosecution and by the Victims and Witnesses Unit of the International Tribunal and removal of any material disclosing identity. The Prosecutor v Tadic, Case IT-94-1-T, Opinion and Judgment, 7.5.97.
[71] The Prosecutor v Tadic, Case IT-94-1-T, Separate Opinion of Judge Stephen on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10.8.95.
[72] Monroe Leigh has written a strong critique of the majority decision, maintaining that it denies the accused a fair trial and may lead to the conviction of accused persons on the basis of tainted evidence: M Leigh, "The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused", 90 American Journal of International Law 235 (1996). Responding to these criticisms, Professor Christine Chinkin - who had prepared an amicus curiae brief in support of the Prosecutor's motion - pointed out that the majority decision was carefully constructed to give appropriate weight to both the interests of the accused and those of vulnerable witnesses. In this connection, she highlighted the fact that unlike international human rights treaties, there was an express obligation on the International Tribunal to protect witnesses: C Chinkin, "Due Process and Witness Anonymity" (1997) 91 American Journal of International Law 75. To refute Professor Chinkin's claims, Monroe Leigh wrote subsequently 'it is a radical proposition to suggest that the minimum rights of the accused to a fair trial can be diminished in order to protect witnesses and victim'. Citing Stephen J's dissenting opinion, he continued 'while Article 22 specifically contemplates non-public hearings, it certainly does not contemplate unfair hearings'. M Leigh, "Witness Anonymity is Inconsistent with Due Process" (1997) 91 American Journal of International Law 80 at 81.
[73] The Prosecutor v Blaskic, Case IT-95-14-PT, Decision on the Application of the Prosecutor Dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, 5.11.96, para 34.
[74] Ibid at para 42. While the Trial Chamber agreed in principle with all five conditions, it observed that the importance of the witness testimony must be ascertained by objective elements in respect of specific charges and, if necessary, independent proof. The mere assertion of the Prosecutor should not be relied on. Similarly, a simple assertion by the Prosecutor that there was no evidence that the witness was not credible was not sufficient. The demonstration of trustworthiness required a positive approach.
[75] See "Tough Law to Protect Witnesses", The Otago Daily Times, 11 December 1997.
[76] In his judgment in Hines, Thomas J referred to several instances of witness intimidation. In one instance, in an attempt to dissuade her from giving evidence, the associates of the accused assaulted the complainant, who alleged that she had been raped by the accused. When she refused to withdraw her complaint, first her car was blown up and then her home was badly damaged by arson. In another, a complainant was held at gunpoint while petrol was poured over her. Her house was subsequently set alight. In his opinion this evidence 'demonstrates that a section of the [New Zealand] community are prepared to use violence to frighten, if not terrify, potential witnesses from giving evidence against them'. R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 at 561.
[77] Ibid at 570.
[78] R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129 at 147. 79 Ibid at 148.
[80] Ibid at 145.
[81] Ibid at 143.
[82] Evidence Act 1908, s 13A (4).
[83] Ibid at s 13A (7).
[84] R v Mcintosh (unreported, High Court, Invercargill, 11.5.1990, Holland J).
[85] Discussion Paper, op cit n 15, at n 37.
[86] Police v Stevens [1995] DCR 791.
[87] R v Coleman [1996] NZHC 1898; (1996) 14 CRNZ 258.
[88] Ibid at 273. An appeal against this decision was dismissed by the Court of Appeal, on the basis that it did not have jurisdiction to hear an appeal from a pre-trial order made in exercise of the inherent jurisdiction of the High Court. The trial judge, Robertson J, followed the decision of Baragwanath J. Discussion Paper, op cit n 15, at para 34.
[89] The Crown also sought various other protective measures including name suppression, closure of the court to the public, removal of the defendants while the witnesses were entering and leaving the courtroom and the use of screens. See R v Brown (unreported, High Court, Christchurch, 22.8.96, T 93/96).
[90] See Discussion Paper, op cit n 15, at para 38.
[91] R v Quack (unreported, High Court, Auckland, 12.3.97, T 350/96).
[92] See Discussion Paper, op cit n 15, at n 39.
[93] R v Hines (unreported, High Court, Palmerston North, 15.2.96, T 1/95).
[94] R v Hines (unreported, High Court, Palmerston North, 20.6.96, T 1/95).
[95] See R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 at 532.
[96] Ibid at 532.
[97] Ibid at 550.
[98] Ibid at 587.
[99] Ibid at 554.
[100] Ibid at 576.
[101] New Zealand Law Commission Parliamentary Paper, Evidence Law: Witness Anonymity E 31AE (1997), para 75.
[102] According to section 13D in any case where a witness is the subject of an anonymity order, the trial must be held in the High Court.
[103] The Act, s 13B(1) and s 13C (1).
[104] Ibid at s 13B(4)(a) (in the case of a pre-trial witness anonymity order) and s 13C(4)(a) (in the case of a High Court trial).
[105] Ibid at s 13C(4)(b)(i). In this connection, the judge must have regard to the witness's previous convictions or the witness's relationship with the accused or any associates of the accused.
[106] Ibid at s 13C(4)(b)(ii).
[107] Ibid at s 13C(4)(C). According to s 13B(4)(b) before granting anonymity, the pre-trial judge must be satisfied that the withholding of the identity of the witness until the trial would not be contrary to the interests of justice.
[108] R v Dunnill [1998] 2 NZLR 341.
[109] Ibid. Recognising that the term 'identity' was not defined in the Act, Young J considered that the aim of the legislation went beyond merely withholding the name from the accused. The Act indicated a 'concept of identity of the witness, including the name, address and occupation of the witness and, by reference to the provisions for screening and the giving of evidence by closed-circuit television or video-link [in section 13G], to withholding from the accused knowledge of the appearance of the witness'.
[110] Ibid. Young J concluded that in the circumstances alternative means of protection were available, including protecting the witness from being required to give her occupation and address in open court, permitting her to evidence in closed court obscured by a screen from the accused and suppressing publication of her name.
[111] Ibid.
[112] Final Report, op cit n 101, at para 28. Prior to the commencement of proceedings, the police must ascertain whether it will be preferable to the charge the defendant summarily or indictably in order to have available the protection of witness anonymity orders.
[113] Discussion Paper, op cit n 15, at para 70.
[114] R v Taylor and Crabb [1994] Times LR 484; [1995] Crim LR 253.
[115] The Prosecutor v Tadic, Case IT-94-1-T, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10.8.95, para 62; and comments by Thomas J in R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 at 576.
[116] See op cit nn 26 and 27,and accompanying text.
[117] See Final Report, op cit n 101, at para 36.
[118] The Prosecutor v Tadic, Case IT-94-1-T, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10.8.95, para 64.
[119] Final Report, op cit n 101, at para 53.
[120] See, inter alia, Kostovski v The Netherlands, ECHR, 23.5.89, Ser A, n 166, at para 39; Doorson v The Netherlands, ECHR, 26.3.96, Ser A, n 330, at para 67; Van Mechelen v The Netherlands, ECHR, 23.4.97, Ser A, n 674, at para 50.
[121] Section 13C of the Act relates to applications made for the purpose of High Court trial. Equivalent provisions are found in sub-paragraphs 13B (5)(a) and (b) for applications made during the pre-trial stage of the proceedings.
[122] Jarvie v The Magistrates' Court of Victoria at Brunswick and Others [1995] VicRp 5; [1995] 1 VR 84 at 90.
[123] R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 at 576.
[124] The Act, s 13B(5)(c) (in the case of a pre-trial witness anonymity order) and s 13C(5)(c) (in the case of a High Court trial).
[125] Ibid at s 13B(5)(d) (in the case of a pre-trial witness anonymity order) and s 13C(5)(d) (in the case of a High Court trial).
[126] R v Taylor and Crabb [1994] Times LR 484; [1995] Crim LR 253.
[127] Supra nn 135 to 138, and accompanying text.
[128] The Prosecutor v Blaskic, Case IT-95-14-PT, Decision on the Application of the Prosecutor Dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, 5.11.96, para 42.
[129] The Act, s 13B(5)(e) (in the case of a pre-trial witness anonymity order) and s 13C(5)(e) (in the case of a High Court trial).
[130] Van Mechelen v The Netherlands, ECHR, 23.4.97, Ser A, no 674, para 58.
[131] See R v Dunnill [1998] 2 NZLR 341.
[132] The Act, s 13B(5)(f) (in the case of a pre-trial witness anonymity order) and s 13C(5)(f) (in the case of a High Court trial).
[133] See Windisch v Austria, 27.9.90, Ser A, no 186, para 28. In that case, the applicant was convicted on the basis of testimony from two unidentified witnesses who saw a man they identified as the applicant behaving suspiciously in the vicinity of the crime. Their testimony, which was the only evidence linking the applicant to the scene of the crime, was read to the court by two police officers. Neither the applicant nor his counsel had an opportunity to question the witnesses.
[134] Doorson v The Netherlands, ECHR, 26.3.96, Ser A, no 330, para 76.
[135] The Act, s 13E.
[136] Ibid at s 13E(2). According to s 13E(3) the fees and reasonable expenses incurred by the independent counsel shall be borne by the State
[137] R v Dunnill [1998] 2 NZLR 341. See also Final Report, op cit n 101, at para 63-65.
[138] Final Report, op cit n 101, at para 46.
[139] See comments by McDonald J in The Prosecutor v Tadic, Case IT-94-1-T, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10.8.95, para 84.
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