The ability of defendants to use MACMA
Approaches taken overseas
20.15In Australia, a defendant may apply to the relevant court for a certificate that it would be in the interests of justice for the Attorney-General to make a request to a foreign country.
20.16The Australian Act specifies that the request could concern:
- the taking of evidence in a foreign country;
- the production of a document or other article in a foreign country;
- seizure of a thing in a foreign country; or
- arrangements for a person in a foreign country to come to Australia to give evidence.
20.17The court must give all parties and the Attorney-General the opportunity to submit on the merits of the application. In making its decision, the court may have regard to any relevant matter and must consider:
- whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant;
- the extent to which the material that the defendant seeks to obtain from the foreign country would not otherwise be available;
- whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding;
- the likely probative value of the material, if it were admitted, with respect to any issue likely to be determined in the proceeding; and
- whether the defendant would be unfairly prejudiced if the material were not available to the court.
20.18If the court issues a certificate, a copy is sent to the Attorney-General. The Attorney-General must, in accordance with the certificate, make a request for assistance on behalf of the defendant to the foreign country unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.
20.19In the United Kingdom, mutual legal assistance requests are governed by the Crime (International Co-operation) Act 2003. That Act provides defendants prosecuted in the United Kingdom with a mechanism for requesting foreign assistance through the court. Where proceedings have been instituted, a person charged in those proceedings may apply to a judicial authority to make a request for mutual legal assistance.
20.20The Act permits a United Kingdom court (or a prosecuting authority) to submit a request directly to a foreign court or to the appropriate authority for receiving requests in the foreign country. Alternatively, a request by a judicial authority or prosecuting authority may be sent to the Secretary of State for forwarding to the appropriate foreign court or authority.
20.21There are clear differences between the Australian and United Kingdom approaches. First, the United Kingdom provision only refers to the Attorney-General “forwarding” the request and does not seem to confer discretion over whether or not to do so. This is consistent with the fact that the United Kingdom court or prosecutor can make a request directly to a foreign authority. However, the Crown Prosecution Service has noted that, as requests for assistance are usually made pursuant to section 74 of the Proceeds of Crime Act 2002, they must be sent to the Secretary of State who will forward them to the requested country if it is appropriate to do so. Regardless, the legislation is not particularly clear on this. In contrast, the Australian provision clearly provides for a two-step process, which gives the Attorney-General discretion over the request.
20.22Secondly, unlike the Australian equivalent, the United Kingdom Act does not state the specific matters that a request may concern. Instead, it simply provides that “any evidence specified in the request for use in the proceedings or investigation” may be requested.
20.23Canada’s mutual legal assistance scheme is different to that in other states because it primarily operates on the basis of bilateral treaties and multilateral conventions. Canada also makes requests for assistance to foreign states with which it does not have a treaty via a non-treaty letter of request issued by a court.
20.24One option available to defendants is a non-treaty court-issued request, permitted under section 709 of the Criminal Code. A party to proceedings, by way of indictment or summary conviction, may apply for an order appointing a commissioner to take the evidence of a witness who is outside of Canada. If successful, the court issues a request seeking evidence in the foreign state. Requests for evidence in criminal matters are, by practice, transmitted by the Minister of Justice through diplomatic channels to the foreign state. This is much more limited than the procedure in Australia and the United Kingdom, as processes in those states are not limited to taking statements.