Chapter 8
Criminal prosecutions

Current law

8.10The Criminal Disclosure Act 2008 controls how information will be disclosed by the prosecution to the defence. Section 13 of the Criminal Disclosure Act requires the disclosure of any relevant information unless there is a reason to refuse the disclosure. The prosecutor must disclose a list of information that is being withheld and the reasons, and if the defendant requests, they must also provide grounds in support (unless giving grounds would itself prejudice the protected interests that justify non-disclosure of the information in question). Under section 16(1)(g), information does not have to be disclosed if it would be likely to prejudice New Zealand’s security or defence, international relations or the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation.

8.11The initial decision whether to disclose or withhold information is made by the prosecutor. The defendant is then able to challenge this decision under section 30, which provides two possible avenues for objection. The first is that the reasons claimed for non-disclosure do not apply. The second is that, even though the information may be withheld (that is, the reasons apply), the interests in favour of disclosure outweigh the interests protected by withholding the information. Under section 30, the court may order disclosure of the information subject to “any conditions that the court considers appropriate”. This affirms the court’s role in weighing the competing interests under the Act. There is also case law to the effect that the court may view the information subject to the application.124
124Edwards v R [2012] NZCA 375.