Let's be clear about what secret evidence is. It's not evidence that can't be reported in the media, and it's not evidence where the judge clears the court of all people not directly participating in the trial.
Secret evidence is evidence that the defendant, the person accused of the crime, is not allowed to see or hear, and therefore cannot challenge. The use of secret evidence makes a mockery of our justice system.
A 2018 court case in Wellington revolved around the government's used of secret evidence. This is even when the judge in the original trial, Justice Dobson, seemed to be horrified at what he was obliged to do:
The whole of our common law tradition, as bolstered by the rights and protections recognised by New Zealand Bill of Rights Act 1990, render the procedure under [the Passports Act] an anathema to the fundamental concepts of fairness.
The Council wrote about it at the time, strongly opposing the use of secret evidence.
The right to a fair trial is a key part of our justice system and this must include the right to see and test the evidence against you. It's impossible to rebut evidence when you don't even know what it says. It's hard to even appeal when the judgement against you omits critical details that the decision relied upon.
So, what laws in New Zealand allow the use of secret evidence? So far we've found the following:
- Health & Safety at Work Act 2015 has schedule 4 concerning the use of secret evidence in labour disputes with employees of agencies handling classified information.
- Immigration Act 2009 where sections 33-42 and 240-244 are for the use of secret evidence in immigration decisions.
- Telecommunications (Interception Capability and Security) Act 2013 has sections 101 - 113 for the use of secret evidence in offences concerning intercepting communications for the spy agencies.
- Terrorism Suppression Act 2002 where section 38 is for the use of secret evidence in offences under this act.
(Are there any we've missed? Please email the author at email@example.com)
How can we trust the people keeping the evidence secret? While the courts may assert their independence from government, to the defendant they're just another part of the government apparatus that's going to put them in jail without the chance to defend themselves.
A counter argument might be that there are times when evidence must be kept secret to protect the identity of sources or to maintain national security. This is the view that it's better to convict unjustly than to let someone go free. But if keeping the evidence secret is so important, why should it be the defendant who is adversely affected? If a conviction is that important, maybe we have to accept that the cost of getting it is "burning" the method or technique used to get the evidence.
We already accept that the courts have the power to exclude evidence that has been obtained unfairly or illegally, even when that evidence might be persuasive in making a decision. This is because the larger cause of justice is seen to outweigh the circumstances of a particular case. Secret evidence should be treated in the same way, unable to be used in court so as to protect the integrity of our justice system.
Let's defend a fair justice system and remove these laws from our books.