Authentication and admissibility of documents received
22.11The authentication and admissibility of evidence obtained by New Zealand under a MACMA request is governed by section 63. The provision essentially provides that any foreign evidence that is to be admitted in criminal proceedings in New Zealand must be duly authenticated and will be subject to the general rules of admissibility in New Zealand. It is intended to ensure that evidence received by New Zealand will be admissible in criminal proceedings in a New Zealand court. However, we understand it can be a challenge to submit foreign-sourced evidence in a form that complies with the authentication and admissibility requirements in section 63.
22.12Authentication provides reassurance that the foreign documents are, in fact, what they purport to be. The authentication process in MACMA is contained in section 63(2). Specifically, a document is duly authenticated if:
(a) it purports to be signed or certified by a Judge, Magistrate, or official in or of a foreign country; and
(i) it is verified by the oath of a witness, or of an official of the Government of a foreign country; or
(ii) it purports to be sealed with an official or public seal of the foreign country or of a Minister of State, or of a department or official of the Government, of a foreign country.
22.13This provision requires documents to be subject to two levels of verification: first, by a judge, magistrate, or official, and then by an oath or a seal. As discussed in Part 1 of this issues paper, it is hard to see what value is added by the second signature or seal.
22.14We also understand that some forms of verification may be difficult for some countries to comply with because some civil law jurisdictions do not require evidence to be taken under oath, affirmation, or caution, as those concepts are understood in common law jurisdictions. This was recognised in Australia, and in 2008, the concept of “testimony” in the Australian Foreign Evidence Act 1994 was amended to include evidence given under obligation to tell the truth, imposed, whether expressly or by implication, by or under the law of the requested foreign country. The amendment was intended to facilitate the admissibility of evidence taken in accordance with procedures under a foreign country’s legal system, even though such procedures may diverge from Australian evidentiary requirements.
22.15Our preference would be to require only one form of verification for authentication purposes and not to limit that verification to one particular form. One option would be for the section to provide a range of acceptable forms of authentication. Alternatively, the section could stipulate that the documentation has been duly authenticated if it has been authenticated in accordance with the law of the requested foreign country.
Q92 How ought evidence obtained by New Zealand under a mutual legal assistance request be authenticated?
22.16Even if the document is duly authenticated, it will not automatically be admissible in criminal proceedings in New Zealand. Section 63(1) of MACMA provides that evidence that is duly authenticated is admissible subject to section 23 and “the rules of law relating to the admission of evidence”.
22.17The “rules of law relating to the admission of evidence” refers to the general rules of admissibility that govern whether a piece of evidence can be admitted as evidence to be considered by the fact finder. These rules are almost entirely contained in the Evidence Act 2006.
22.18Given the differences between civil and common law jurisdictions – in particular, the much more strict evidentiary requirements in common law countries – obtaining evidence in the correct form can be a real challenge.
Rules of law relating to the admission of evidence in the Evidence Act
22.19New Zealand law requires evidence to be relevant and that its probative value outweighs any possible prejudicial effect. In addition to these general evidential rules, the Evidence Act contains a number of specific rules as to admissibility. One such rule, which is likely to be particularly relevant to evidence obtained under MACMA, relates to hearsay statements. A hearsay statement is a statement that was made by a person other than a witness and is offered in evidence at the proceeding to prove the truth of its contents. This is likely to be particularly relevant to evidence obtained under MACMA because the author of the document submitted as evidence is unlikely to be a witness in court and the document is likely to be submitted to prove the truth of its contents. The concern about hearsay statements is that the person who made the statement is not a witness in court, so the evidence contained in the statement cannot be tested by cross-examination. This means the fact finder is not in a position to make the best decision about its validity. Thus, the general rule in the Evidence Act is that a hearsay statement is not admissible.
22.20Although hearsay may arise in respect of evidence supplied as a result of a MACMA request, it seems that section 18 of the Evidence Act is most likely to permit many, if not most, hearsay statements to be admitted as evidence. Section 18 provides that a hearsay statement is admissible if: (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) the maker of the statement is unavailable to be a witness, or undue expense or delay would be caused if they were required to be a witness. Given that documents that are the subject of MACMA requests are likely to have come from state agencies and will therefore be duly authenticated, the reliability requirement in (a) would likely be made out, and given that the maker of the statement is overseas, the requirement in (b) could also arguably be satisfied.
22.21There may be a more obvious challenge in securing evidence that complies with form requirements under domestic law, such as affidavits and affirmations that are used in New Zealand to present evidence in written form. We raised this issue above in our discussion of the form requirements for authentication. The concepts of oath and affirmation, for example, are not used in some civil law jurisdictions. Most common law jurisdictions face similar challenges, and some have tried to get around this by providing pro forma affidavits, declarations, and statements, depending on what is required. However, even then, material is commonly received that does not comply.
Q93 What domestic rules relating to the admissibility of evidence cause an issue for evidence obtained by New Zealand under a MACMA request?