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Crimes Act 1961

Crimes against public order - Treason and other crimes against the Sovereign and the State

78C: Questions of law in relation to espionage or wrongful communication of information

You could also call this:

“The law decides if sharing secret information could have hurt New Zealand's safety.”

When someone is accused of certain crimes related to espionage or wrongly sharing information, there are some legal questions that need to be answered. These questions are about whether the actions of the accused person could have harmed New Zealand’s security or defence.

For some crimes, like spying or planning to spy, the judge needs to decide if the information that was shared or was going to be shared could have hurt New Zealand’s safety. This is a question of law, which means it’s up to the judge to decide.

For other crimes, like having or sharing secret documents, the judge needs to decide if revealing those documents could have seriously harmed New Zealand’s security or defence. This is also a question of law.

To help answer these questions, both the person bringing the case (the prosecutor) and the person accused of the crime (the defendant) can show extra evidence to the judge. This evidence can help the judge understand the facts better and make the right decision about whether the actions were likely to harm New Zealand.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM328542.

Topics:
Crime and justice > Criminal law
Government and voting > Emergency management
Rights and equality > Privacy
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78B: Consent of Attorney-General to proceedings in relation to espionage or wrongful communication, retention, or copying of classified information or official information, or

“The Attorney-General must agree before someone can be charged with spying or mishandling secret information.”

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78D: Search without warrant, or

“This old rule let police look for evidence without asking a judge first, but it's not used anymore.”

Part 5 Crimes against public order
Treason and other crimes against the Sovereign and the State

78CQuestions of law in relation to espionage or wrongful communication of information

  1. It is a question of law, in the case of—

  2. an offence against section 78 or section 78A(1)(a); or
    1. the offence of conspiring to commit an offence against section 78 or section 78A(1)(a); or
      1. the offence of attempting to commit an offence against section 78 or section 78A(1)(a),—
          1. whether the communication or delivery or intended communication or intended delivery was or would have been, at the time of the alleged offence, likely to have prejudiced the security or defence of New Zealand.

        1. It is a question of law, in the case of,—

        2. an offence against section 78A(1)(b) or (c); or
          1. the offence of conspiring to commit an offence against section 78A(1)(b) or (c); or
            1. the offence of attempting to commit an offence against section 78A(1)(b) or (c),—
                1. whether the document would, by its unauthorised disclosure at the time of the alleged offence, have been likely to have prejudiced or to have prejudiced seriously, as the case may require, the security or defence of New Zealand.

              1. Where the decision on any question of law to which this section applies depends on any questions of fact, the prosecutor or the defendant may adduce, and the Judge may hear, in addition to the evidence heard by the jury, any evidence relevant to those questions of fact.

              Notes
              • Section 78C: inserted, on , by section 2(1) of the Crimes Amendment Act (No 2) 1982 (1982 No 157).
              • Section 78C(3): amended, on , by section 6 of the Crimes Amendment Act (No 4) 2011 (2011 No 85).