Evidence Act 2006

Trial process - Alternative ways of giving evidence - Giving of evidence by undercover Police officers

108: Undercover Police officers

You could also call this:

"Rules for undercover police officers giving evidence in court for serious crimes"

When you are on trial for a serious crime, the police might call an undercover police officer to give evidence. This section and section 109 apply to certain serious crimes, like those that can result in a long prison sentence. The crimes include some offences against the Misuse of Drugs Act 1975, the Crimes Act 1961, and the Arms Act 1983.

If an undercover police officer is going to give evidence, the police commissioner must file a certificate with the court. The certificate says the officer was working undercover and gives some information about the officer. It might say if the officer has been convicted of a crime or found guilty of not following police rules, as outlined in section 20 of the Policing Act 2008.

The commissioner must also include any information about the officer's credibility as a witness. The certificate does not need to include the officer's real name or address, just some basic information about any crimes or comments. This rule also applies to some other laws, like the Criminal Proceeds (Recovery) Act 2009 and parts of the Sentencing Act 2002.

An undercover police officer is someone whose identity is hidden so they can investigate crimes. This section applies to trials for serious crimes, and it helps keep the officer's identity secret while still letting them give evidence in court.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393943.

Topics:

Crime and justice > Courts and legal helpCrime and justice > Police and safetyCrime and justice > Criminal law

107B: Application by any other party for child witness to give evidence in ordinary way or different alternative way, or

"Asking a Judge to let a child witness give evidence in a way that's best for them"

109: Effect of certificate under section 108, or

"What happens when a police certificate is used to protect a witness's identity"

Part 3Trial process
Alternative ways of giving evidence: Giving of evidence by undercover Police officers

108Undercover Police officers

This section and section 109 apply in any case where a person is being, or is to be, proceeded against—
for any offence that is punishable by imprisonment for life or for a term of at least 7 years; or
for any other offence against any provisions of the Misuse of Drugs Act 1975 punishable by imprisonment for life or for a term of at least 5 years; or
for an offence against section 98A of the Crimes Act 1961; or
for an offence against section 42A or 42B of the Arms Act 1983; or
for conspiracy to commit, or for attempting to commit, an offence described in paragraph (a) or (b).

If, in any proceeding to which this section applies, it is intended to call an undercover Police officer as a witness for the prosecution, the Commissioner of Police may, as soon as is reasonably practicable after a defendant has pleaded not guilty, file in the court in which the proceedings are to be held a certificate signed by the Commissioner stating, in respect of that witness, the following particulars:
that during the period specified in the certificate the witness was a member of the Police and acted as an undercover Police officer:
that the witness has not been convicted of any offence or (as the case may require) that the witness has not been convicted of any offence other than the offence, or offences, described in the certificate:
that the witness has not been found guilty of a breach of the code of conduct prescribed under section 20 of the Policing Act 2008, or (as the case may require) that the witness has not been found guilty of any breach of that kind, other than a breach described in the certificate.

If, to the knowledge of the Commissioner of Police, the credibility of the witness in giving evidence in any other proceeding has been the subject of adverse comment by the Judge, the Commissioner must also include in the certificate a statement of the relevant particulars.
It is sufficient for the purposes of subsections (2) and (3) if the certificate includes a statement of the nature of any offence or comment referred to in the certificate and the year in which the offence was committed or the comment was made, and it is not necessary to include the venue or precise date of the proceedings or any other particulars that might enable the true name or true address of the witness to be discovered.
In this section and in section 109, undercover Police officer, in relation to any proceeding to which this section applies, means a member of the Police whose identity was concealed for the purpose of any investigation relevant to the proceedings.
This section also applies, with any necessary modifications, in any case where a person is being, or is to be, proceeded against under—
the Criminal Proceeds (Recovery) Act 2009; or
sections 142A to 142Q of the Sentencing Act 2002.

Compare

1908 No 56 s 13A(1)–(5)

Notes

Section 108(1): amended, on 1 July 2013, by section 5 of the Evidence Amendment Act 2011 (2011 No 89).
Section 108(1)(b): amended, on 1 July 2013, by section 5 of the Evidence Amendment Act 2011 (2011 No 89).
Section 108(1)(ca): inserted, on 15 November 2022, by section 14 of the Firearms Prohibition Orders Legislation Act 2022 (2022 No 41).
Section 108(2): amended, on 1 July 2013, by section 5 of the Evidence Amendment Act 2011 (2011 No 89).
Section 108(2)(c): substituted, on 1 October 2008, by section 130(1) of the Policing Act 2008 (2008 No 72).
Section 108(6): added, on 1 December 2009, by section 184 of the Criminal Proceeds (Recovery) Act 2009 (2009 No 8).