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Evidence Act 2006

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

109B: Effect of certificate under section 109A

You could also call this:

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

Illustration for Evidence Act 2006

If a Director-General of an intelligence and security agency files a special certificate under section 109A(2) about a witness, you need to know what this means. When the witness says they were an intelligence officer or source during the time stated in the certificate, it is assumed to be true unless proven otherwise. The witness can be referred to in a way that keeps their identity secret, as stated in the certificate.

You cannot ask the witness to reveal their real name or address, or any details that might give away who they are, unless a Judge gives permission. No one involved in the case can reveal the witness's real name or address in court, unless the Judge says it is okay. If someone wants to ask a question that might reveal the witness's identity, they need to get the Judge's permission first.

If there is a jury, the Judge will only give permission if they think it is necessary for a fair trial. The Judge must be satisfied that the witness's identity is important to the case and that not knowing it would make it hard for the other side to question the witness properly. A request to reveal the witness's identity can be made at any time during the trial, but it should be done in private, without the jury present.

When a Director-General files a certificate under section 109A(2), they must give a copy to the other parties involved at least 14 days before the witness is called to give evidence.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS924729.

Topics:
Crime and justice > Courts and legal help
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109A: Certificates relating to intelligence officers and intelligence sources, or

"Protecting Secret Agents in Court Cases"

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110: Pre-trial witness anonymity order, or

"A court order to keep a witness's identity secret before a trial to keep them safe."

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

109BEffect of certificate under section 109A

  1. In any proceeding in which a Director-General of an intelligence and security agency has filed a certificate under section 109A(2) relating to a party’s witness,—

  2. if the witness states that, during the period specified in the certificate, the witness acted as an intelligence officer or intelligence source as specified in the certificate, it must be presumed, in the absence of proof to the contrary, that the certificate has been given in respect of that witness; and
    1. it is sufficient if the witness is referred to in the way specified by the Director-General in the certificate, and, except if leave is given under subsection (2), the witness must not be required to state the true name or address of the witness or to give any particulars likely to lead to the discovery of that name or address; and
      1. except if leave is given under subsection (2), no lawyer, officer of the court, or other person involved in the proceeding may state in court the true name or address of the witness or give any particulars likely to lead to the discovery of that name or address.

        1. No evidence may be given, and no question may be put to the witness, or to any other witness, that relates directly or indirectly to the true name or address of the witness except by leave of the Judge.

        2. On an application for that leave, the certificate is, in the absence of evidence to the contrary, sufficient evidence of the particulars stated in it.

        3. If there is a jury, the Judge must not grant the leave unless the Judge is satisfied that—

        4. there is some evidence before the Judge that, if believed by the jury, could call into question the credibility of the party’s witness; and
          1. it is necessary in the interests of justice that other parties be enabled to test properly the credibility of the witness; and
            1. it would be impracticable for other parties to test properly the credibility of the witness if those parties were not informed of the true name or address of the witness.

              1. An application for leave under subsection (2)—

              2. may be made from time to time and at any stage of the proceeding; and
                1. must, where practicable, be made and dealt with in chambers; and
                  1. if the application is made during a trial before a jury, must be dealt with and determined by the Judge in the absence of the jury.

                    1. If a Director-General of an intelligence and security agency files a certificate under section 109A(2) in respect of any party’s witness, the Director-General must serve a copy of the certificate on the other parties, or on any lawyer acting for another party, at least 14 days before the witness is to give evidence.

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