The Mutual Assistance in Criminal Matters Act 1992 (“MACMA”) designates the Attorney-General as the Central Authority for mutual assistance in New Zealand. The Attorney-General in New Zealand is an elected Member of Parliament and a Cabinet Minister. The Attorney-General’s powers under MACMA are largely delegated to the Solicitor-General, who is an appointed Law Officer. Lawyers at Crown Law Office, the Office of the Solicitor-General, therefore undertake the legal work required to make or fulfil mutual assistance requests.
In practice formal requests for mutual assistance are received by, and prepared by, the Crown Law Office on behalf of the Attorney-General. Within the Criminal Team at Crown Law, specially trained counsel prepare outgoing requests and assess incoming requests. The request is then referred to the Deputy Solicitor-General (Criminal Team) who, pursuant to delegations from the Attorney-General, consents to the request being actioned or sent.
New Zealand considers that a helpful function of Foreign Central Authorities is to provide information to the New Zealand Central Authority on what is required for a mutual assistance request to comply with the relevant mutual assistance regime in the country from which assistance is being requested.
Difficulties for the timely facilitation of mutual assistance requests can occur when agencies in the country to which a request is made do not communicate well with one other. This can lead to delays and, in some cases, information being obtained by (for example) the police in the foreign country but never actually being transmitted via the Foreign Central Authority to New Zealand. It is helpful if the Foreign Central Authority is able to take a supervisory role in ensuring that a mutual assistance request does not get held up or lost as it is passed between agencies.
New Zealand’s approach is to aim for a respectful and careful balance between initial informal approaches (if necessary) followed up by the issuance of a formal and compliant mutual assistance request.
Any evidence that is sought to be admitted in criminal proceedings in New Zealand is subject to the general rules of admissibility. There are many bases on which defence counsel can challenge evidence in general and especially evidence which is obtained from overseas. For this reason New Zealand requests for obtaining evidence usually involve detailed and often lengthy procedures that we request the foreign country to follow. While we appreciate that this can seem very burdensome, it is also critically important. Counsel in the Crown Law Office are happy to discuss any problems the foreign country has in actioning our requests.
The adversarial system in New Zealand is underpinned by a strong preference for witnesses in criminal proceedings to appear in person so they can be cross-examined. This is one reason why the next best thing to an actual witness may be video-link evidence. It is also why having already interviewed a witness in a foreign country, or taken their statement, New Zealand will often need to make a further request for that witness to (a) attend in person, (b) give evidence by video-link, or (c) provide an affidavit (statement on oath requiring compliance with additional legal formalities).
Because of the importance of personal attendance, New Zealand requests will frequently need to do more than simply request that the foreign country ask the witness to attend Court in New Zealand. We will commonly also ask that the importance of the request and the need for personal attendance be explained, and that the specific assurances and guarantees relating to the witness’ time in New Zealand are explained in an effort to encourage their attendance. It is accepted that attendance is on an entirely voluntary basis.
Incoming requests often come through diplomatic channels, via the Ministry of Foreign Affairs and Trade. Requests sometimes arrive through Interpol, or are sent directly to the Crown Law Office. Once the request arrives at the Crown Law Office, a lawyer in the Criminal Law team assesses the request for compliance with the requirements of MACMA. Often, some further information is required from the country that is making the request, so the lawyer dealing with the file will liaise with the requesting country to obtain the necessary information.
If the request complies with the requirements of MACMA, including the requirements of evidential sufficiency, the Deputy Solicitor-General will consent to the request. Crown Law will then instruct the New Zealand authority which is responsible for providing the assistance. In most cases this will be Interpol, which will in turn brief the local police. Crown Law will continue to supervise the request, and in most cases any documentation obtained pursuant to the request will be returned to Crown Law, so that Crown Law can provide the material to the requesting country. Crown Law will check the documentation to ensure it is duly authenticated and in order.
How are outgoing requests dealt with?
Outgoing requests originate from the New Zealand Police in most cases. The Serious Fraud Office also generates requests. Some requests originate from Government Departments or agencies which investigate and/or prosecute criminal offences such as the Ministry of Fisheries; Customs and the Department of Internal Affairs.
It is important to note that Courts exercising criminal jurisdiction in New Zealand cannot issue letters of request to foreign countries.
All formal outgoing requests are prepared by counsel at Crown Law. Sometimes the issue of a formal request is preceded by enquiry of the foreign country as to what the mutual assistance requirements of that country are, or whether the foreign country would be likely to provide the assistance sought. Often such enquiry is made on New Zealand’s behalf by the New Zealand Embassy in the foreign country.
Most outgoing requests are sent to the foreign country through diplomatic channels. Where the request is to a country with which New Zealand frequently engages in mutual assistance, requests may be sent directly by international courier and faxed or emailed.
In New Zealand’s experience, the following matters should be checked by the Foreign Central Authority when making the request.
- Does the request relate to a criminal matter?
A criminal matter is defined either as a criminal investigation or a criminal proceeding (we interpret a proceeding as commencing at the point where a charge is laid against an identified individual).
MACMA does not prescribe offences in relation to which we can provide assistance. However, we do require a statement that the conduct amounts to criminal offending in the foreign country.
A significant number of requests are refused on the basis that they involve conduct that impeaches civil or family law but is not criminal. However, see section 2B(3) for certain civil proceedings which are deemed to be criminal proceedings.
- If the request does relate to a criminal matter, what is the penalty for the relevant offence?
Copies of the relevant legislation confirming the penalty should be provided with the request. Some requests may be refused under MACMA if the penalty involved is less than 2 years imprisonment (requests involving search warrants) or less than 5 years imprisonment (requests to enforce foreign confiscation orders and foreign restraining orders and other proceeds of crime orders).
- Does the request contain an assurance of reciprocity, as required by MACMA (for non-Treaty and non-convention countries)?
This may be in very simple terms for example: “By law, [requesting country] can provide assistance of the type sought in this case to [requested country]. I assure the authorities of [requested country] that the [requesting country] Government would, to the fullest extent permitted by our law, comply with a similar request made to it by the [requested country] authorities.
- Does the request meet the MACMA requirements in relation to search warrants?
In New Zealand, a judicial officer will issue a warrant only where it is established that reasonable grounds exist for believing that an item relevant to a criminal investigation will be found in a particular place. It is important that the request identifies with precision the relevance of the thing sought to be obtained to the alleged criminal offending, and the grounds for thinking that the thing sought is in a particular place in New Zealand.
- Does the request contain a clear and detailed statement of the foreign country’s requirements?
This is especially important with respect to the taking of evidence and the foreign country’s requirements for documents to be admissible.
- Is the translation of the documents into English of high quality?
All incoming requests must be translated into high quality English.