Giving of evidence by anonymous witnesses

110 Pre-trial witness anonymity order

(1)

This section and section 111 apply if a person is charged with a category 3 or 4 offence.

(2)

At any time after the person is charged, the prosecution or the defendant may apply to a Judge for an order—

(a)

excusing the applicant from disclosing to the other party before the trial the name, address, and occupation of any witness, and (except with the leave of the Judge) any other particulars likely to lead to the witness’s identification; and

(b)

excusing the witness from stating in any formal statement, or in giving oral evidence in accordance with an oral evidence order, his or her name, address, and occupation, and (except with leave of the Judge) any other particulars likely to lead to the witness’s identification.

(3)

The Judge must hear and determine the application in chambers, and—

(a)

the Judge must give each party an opportunity to be heard on the application; and

(b)

neither the party supporting the application nor the witness need disclose any information that might disclose the witness’s identity to any person (other than the Judge) before the application is dealt with.

(4)

The Judge may make the order if he or she believes on reasonable grounds that—

(a)

the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to property, if the witness’s identity is disclosed before the trial; and

(b)

withholding the witness’s identity until the trial would not be contrary to the interests of justice.

(5)

Without limiting subsection (4), in considering the application, the Judge must have regard to—

(a)

the general right of a defendant to know the identity of witnesses; and

(b)

the principle that witness anonymity orders are justified only in exceptional circumstances; and

(c)

the gravity of the offence; and

(d)

the importance of the witness’s evidence to the case of the party who wishes to call the witness; and

(e)

whether it is practical for the witness to be protected prior to the trial by any other means; and

(f)

whether there is other evidence that corroborates the witness’s evidence.

(6)

A pre-trial witness anonymity order may be made—

(a)

by a District Court Judge who holds a warrant under the District Court Act 2016 to conduct jury trials:

(b)

if the preliminary hearing is held in the Youth Court, by a Judge referred to in section 274(2)(a) of the Oranga Tamariki Act 1989:

(c)

by a High Court Judge.

Compare: 1908 No 56 s 13B(1)–(5), (7)

Section 110(1): replaced, on 1 July 2013, by section 5 of the Evidence Amendment Act 2011 (2011 No 89).

Section 110(2): replaced, on 1 July 2013, by section 5 of the Evidence Amendment Act 2011 (2011 No 89).

Section 110(6)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 110(6)(a): amended, on 1 July 2013, by section 5 of the Evidence Amendment Act 2011 (2011 No 89).

Section 110(6)(b): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 110(6)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).