Plain language law

New Zealand law explained for everyone

Evidence Act 2006

Trial process - Alternative ways of giving evidence - Giving of evidence by intelligence officers and intelligence sources

109A: Certificates relating to intelligence officers and intelligence sources

You could also call this:

"Protecting Secret Agents in Court Cases"

Illustration for Evidence Act 2006

If you are in a court case, there are special rules to protect people who work with secret information. These rules apply to some civil and criminal cases. You will see these rules in section 109B as well.

When someone who works with secret information is called to be a witness, a special person called the Director-General can write a certificate. The Director-General is in charge of an intelligence and security agency, which is explained in section 4 of the Intelligence and Security Act 2017. This certificate says who the witness is and why their identity must be kept secret.

The certificate must be filed in court, and the rules for doing this are different for civil and criminal cases. If the witness has done something wrong in the past, this must be included in the certificate, but it is not necessary to include all the details. You can find more information about what the Director-General is and what they do in section 4 of the Intelligence and Security Act 2017.

There are special definitions for some words used in this section, such as Director-General, foreign intelligence agency, intelligence and security agency, intelligence officer, and intelligence source. An intelligence officer is someone who works for an intelligence and security agency, and an intelligence source is someone who gives secret information to an intelligence and security agency. A foreign intelligence agency is an agency that gathers secret information for a country that shares information with New Zealand.

These rules also apply to some other types of cases, such as those under the Criminal Proceeds (Recovery) Act 2009 or sections 142A to 142Q of the Sentencing Act 2002.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS924728.

Topics:
Crime and justice > Courts and legal helpCrime and justice > Criminal law
Previous

109: Effect of certificate under section 108, or

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

Next

109B: Effect of certificate under section 109A, or

"What happens when a special certificate is used to keep a witness's identity secret"

Part 3Trial process
Alternative ways of giving evidence: Giving of evidence by intelligence officers and intelligence sources

109ACertificates relating to intelligence officers and intelligence sources

  1. This section and section 109B apply—

  2. to a civil proceeding; or
    1. to a criminal proceeding for a category 3 or 4 offence.

      1. If a party to the proceeding intends to call an intelligence officer or an intelligence source as a witness, a Director-General of an intelligence and security agency may file in the court in which the proceeding is to be held a certificate, signed by the Director-General, stating that,—

      2. during the period specified in the certificate, the witness was—
        1. an intelligence officer of the intelligence and security agency or of a foreign intelligence agency; or
          1. an intelligence source of the intelligence and security agency; and
          2. the identity of the witness must not be disclosed because that disclosure would adversely affect the ability of the intelligence and security agency or (if applicable) the foreign intelligence agency to carry out its activities while maintaining the secrecy of its activities; and
            1. the witness has not been convicted of any offence or (as the case may require) the witness has not been convicted of any offence other than the offence, or offences, described in the certificate.

              1. The Director-General must file the certificate,—

              2. in the case of a civil proceeding, in accordance with rules of court; or
                1. in the case of a criminal proceeding, as soon as is reasonably practicable after a defendant has pleaded not guilty.

                  1. If the Director-General knows that the credibility of the witness in giving evidence in any other proceeding has been the subject of adverse comment by the Judge in that proceeding, the Director-General must also include in the certificate a statement of the relevant particulars.

                  2. For the purposes of subsections (2)(c) and (4),—

                  3. it is sufficient that the certificate includes—
                    1. a statement of the nature of any offence or comment referred to in the certificate; and
                      1. the year in which the offence was committed or the comment was made; and
                      2. it is not necessary to include the venue or precise date of the proceeding or any other particulars that might enable the true name or address of the witness to be discovered.

                        1. In this section and in section 109B,—

                          Director-General of an intelligence and security agency has the same meaning as in section 4 of the Intelligence and Security Act 2017

                            foreign intelligence agency means an agency that has responsibility for intelligence gathering for a country with which New Zealand has an intelligence sharing arrangement

                              intelligence and security agency has the same meaning as in section 4 of the Intelligence and Security Act 2017

                                intelligence officer means—

                                1. an employee of an intelligence and security agency; or
                                  1. an individual employed or engaged in a foreign intelligence agency

                                    intelligence source means any individual who has provided intelligence to an intelligence and security agency on a confidential basis.

                                    1. This section also applies, with any necessary modification, in any case where a person is being, or is to be, proceeded against under—

                                    2. the Criminal Proceeds (Recovery) Act 2009; or
                                      1. sections 142A to 142Q of the Sentencing Act 2002.

                                        Notes
                                        • Section 109A: inserted, on , by section 95 of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).